AA Legal Documents
Law guide

Pollution

Contents

The state of your neighbour's property can drastically affect your own. For instance, a neighbour who leaves rubbish in their garden will encourage rats and other vermin which have the potential to enter your property and cause problems. Pollution by your neighbours may count as a statutory nuisance under the following legislation:

  • In England & Wales, the Environmental Protection Act 1990
  • In Northern Ireland, the Pollution Control and Local Government (Northern Ireland) Order 1978 and the Industrial Pollution Control (Northern Ireland) Order 1997
Some examples of statutory nuisances related to pollution are:

  • Noise or vibration
  • Smoke, fumes or gases from any premises
  • Dust, steam or smells from business premises
  • Accumulations or deposits
  • Animals kept in unhygienic/unsafe conditions
To determine what a nuisance is, the law looks to balance the right of one individual to enjoy their land, without interfering with the right of their neighbour to enjoy their land. Some guidelines include:

  • A nuisance must cross a boundary
  • It must be a substantial interference and not a trivial matter
  • A one-off event such as a birthday party can be a nuisance
  • The time, duration, nature and location of the nuisance must be taken into account
First steps

Approach the person causing the nuisance and explain politely that you are being troubled; they may be unaware of the problem they are causing. Most will be glad to do what they can to reduce the nuisance and may even thank you for letting them know! If you are reluctant to approach them (for example, if you think they may react aggressively), go straight to your local authority, but it is better to try a friendly approach first.

If the nuisance persists, you should write to the person responsible, explaining the effect it is having on you. Ask them to stop causing the problem, referring to any conversations you may have had and what, if anything, he or she agreed to do about it. Keep a copy of the letter. Start a diary recording the dates and times of any problems, the effects on you/your property, and keep a record of any conversations you have or letters you write. Try to assemble as much evidence of your claim as possible; this can include photos or even statements by other affected neighbours or third parties who can corroborate your claims.

Council involvement

Council officers have a duty to take 'steps as are reasonably practicable' to investigate your complaint under section 79 of the Environmental Protection Act in England & Wales and under the Pollution Control and Local Government (Northern Ireland) Order 1978 in Northern Ireland. They usually try to resolve disputes informally at first by writing to or visiting the person causing the nuisance, asking them to take any steps that may be necessary to reduce the problem.

If they visit or witness the pollution and are satisfied that a statutory nuisance exists, they must take immediate action. If the pollution being complained of is intermittent, they may ask you to keep details of when it happens in a diary, or leave equipment to record it.

Sometimes they will measure the pollution as part of their investigation into a complaint. There is no set level at which any form of pollution becomes a statutory nuisance, and determining whether it constitutes a nuisance is determined on a case by case basis.

If the pollution levels are intermediate and do not constitute a statutory nuisance, they can still:

  • Try to resolve the dispute informally themselves or appoint mediators
  • Write to the person causing the nuisance saying a complaint has been made
  • Ask the neighbours to take steps to reduce the level of disturbance
If the informal approach fails and they are satisfied that the noise amounts to a statutory nuisance, they must serve an abatement notice.

If the environmental officer refuses to help by becoming involved in the situation, a private application can be made to the court; this is discussed below. A notice must be served on the person responsible for the pollution or, in certain circumstances, the owner or occupier of the premises or the offending vehicle or machinery, etc., or person responsible for the offending vehicle or machinery etc. A person can appeal against an abatement order within 21 days of receiving it.

Complaint about the council

If, after allowing a reasonable time for the local authority to act, you are unhappy about the way in which the local authority has handled the case, you should make a formal complaint to the relevant Chief Officer at the authority or the Chief Executive. Alternatively, talk to your elected councillor. Most local authorities have a formal complaints procedure.

The Commission for Local Administration (the Local Government Ombudsman) in England & Wales and the Northern Ireland Ombudsman are independent bodies which provide an impartial investigation into complaints of injustice and maladministration by local authorities. If a local authority fails to deal with a complaint properly, this may amount to maladministration. Any complaint made to the Ombudsman must be brought within 12 months of the event/omission complained of. Before the Ombudsman will investigate a complaint, the council must have a chance to answer it.

Complaining to a magistrates' court

If, for whatever reason, the local authority does not take action, or if you do not wish to involve them, you can complain about a noise problem direct to the magistrates' court under:

  • In England & Wales, section 82 of the Environmental Protection Act 1990
  • In Northern Ireland, under Article 39 of the Pollution Control and Local Government (Northern Ireland) Order 1978
The magistrates' court will need to be persuaded that the noise problem amounts to a statutory nuisance.

How to proceed

It is important that you keep a written record of the dates, times and duration of the offending noise, as well as a description of its nature and the distress it causes you in the reasonable occupation of your home.

Try and resolve the problem informally before contacting the court, and by writing to the person responsible for the noise. If you know where the noise is coming from but do not know what or who is causing it, then making contact with the owner or occupier of the premises may work wonders.

Give fair warning of your action

If you decide to take action under section 82 of the 1990 Act or Article 39 of the 1978 Order, you must give at least three days' notice of your intentions in writing to the person responsible for the noise, and provide them with details of your complaint. Deliver your notice by post or by hand and make sure your letter is dated and you have kept a copy.

Working with the court

When you contact the court, tell them you wish to make a complaint under:

  • If you are in England & Wales, section 82 of the Environmental Protection Act 1990
  • If you are in Northern Ireland, Article 39 of the Pollution Control and Local Government (Northern Ireland) Order 1978
You will probably need to visit the court where the procedure will be explained to you, and you may be asked for evidence of the problem. This will show the magistrates that you have an arguable case. You should also let the court know if you have notified the environmental health department of the problem.

The court will decide if a summons can be issued, and may ask you to serve it (by hand or by post) on the person responsible for the noise, stating the date and time of the court hearing. If you serve the notice, you should keep a careful record and ensure that the notice is served well before the hearing date. When the time comes for the hearing, you will have to attend court to give evidence.

The person responsible for the noise will very likely come to the court to defend themselves, and may even make counter-accusations. You do not need to have a solicitor to represent you at the hearing, although you may do so if you wish.

You will need to be prepared for the possibility of having to pay the costs of taking the case to court. These costs will include your costs, those of your solicitor if you have one, and any witnesses you may call in support of your case.

Getting help with costs

Legal representation is not available for this type of case through the legal aid scheme. However, in England and Wales, you may be financially eligible under the 'Legal Help' scheme and this may provide free or subsidised legal advice and assistance in preparation of your case.

If you are going to represent your own case, the clerk of the court may give you advice and guidance. Alternatively you can contact your local Citizens Advice Bureau which may be able to offer assistance.

The outcome

If the court decides in your favour, it will make an order requiring the offender to abate the noise nuisance and specify the measures they will have to take to achieve this. The order may also prohibit or restrict a recurrence of the nuisance.

The court may also impose a fine of up to £5000 at the same time as making the order.

If the court finds that the nuisance existed at the date of making the complaint, they will award you the reasonable costs incurred by you in bringing the action against the noise maker. These costs will be awarded whether or not the nuisance still exists or an abatement order is made. If an order is made, the court will generally require the noise maker to pay your costs.

If the case is dismissed, you will normally incur your own costs in bringing the case to court and you may incur the costs of the other party.

Failure to comply with an abatement notice or prohibitive order

If a person on whom an abatement notice or prohibitive order has been served fails, without reasonable cause, to comply, he will have committed an offence. This applies in respect of both council and private nuisance applications. For offences relating to domestic premises and private vehicles, the magistrates' court may impose a maximum fine of £5,000 with a further fine of up to £500 (or £50 in Northern Ireland) for each day the offence continues after conviction. When the nuisance arises on industrial, trade or business premises, the maximum fine is £20,000.

Local authorities have powers to do whatever is necessary to gain abatement of any nuisance dealt with by a notice or order, e.g. gain entry to premises and remove vehicles, machinery or equipment which are causing a statutory nuisance by creating too much noise.

Best practicable means defence for businesses

It is a defence in ANY proceedings relating to statutory nuisance arising on industrial, trade or business premises, to prove that best practicable means have been used to prevent or counteract the effect of whatever is being complained about. This recognises that there can be technical and other limitations as far as industry is concerned.

Scotland

The EPA applies in Scotland, but there is additional relevant legislation that we discuss under the sections within this chapter dealing with particular types of pollution.

Persistent noise

If there continues to be persistent nuisance, your neighbour can be prosecuted in the Sheriff Court (section 80(4) of the Environmental Protection Act 1990 as amended by the Environment Act 1995) and fined up to £5,000 plus a daily fine of £500 for each day on which the offence continues after conviction. The law states that only one person needs to be upset by the noise for it to be classed as a nuisance. However, if you can get witnesses, your case will be strengthened. Under Section 82 of the Environmental Protection Act 1990 (as amended by the Environment Act 1995), you can also prosecute the matter yourself at the Sheriff Court.