Statutory nuisance will rise as lockdown eases


14 May 2020

With some sectors such as construction and manufacturing being actively encouraged to return to work, while many others are encouraged or need to continue to work from home, it seems highly likely that there could be a spike in complaints about nuisance, particularly for businesses which operate in and close to residential areas.

A nuisance is the unacceptable interference with the comfort or amenity of neighbours. A statutory nuisance is any type of nuisance that is defined as such in the Environmental Protection Act 1990 and includes common nuisance issues such as noise, dust and smell.

Planning conditions are often used to try to lessen the impact of activities on surrounding communities, but in an attempt to facilitate social distancing, to assist supply chains and to get the economy back on its feet, the government has issued a range of guidance and steps to allow the enforcement of conditions to be relaxed. It is suggested, for example, that developers should be able to negotiate more flexible hours of operation to allow workers to stagger arrival time and to ease pressure on public transport.

Negotiating an easing of a planning condition in relation to operating hours, however, will not prevent neighbours from complaining about nuisance and the council will remain obliged to act in relation to complaints. Although I can foresee that a council which has relaxed a planning condition will be less than enthusiastic about serving an abatement notice for the same activity, it could happen. It is best to avoid upsetting neighbours now, as in my experience once they begin to complain they are likely to continue to do so and it can become a long term and costly problem to have.

There are some simple steps that businesses can take (which are always applicable, not just during lockdown) to protect their interests and to avoid the service of an abatement notice or at least enable one to be successfully dealt with.

An abatement notice is a statutory notice which can be served on a landowner or a person creating a nuisance (or where a nuisance is anticipated) which requires the nuisance to be abated (stopped or reduced). Failure to comply with the notice is a criminal offence with an unlimited fine for a breach where it is on business premises.

If the notice is served, there is a strict 21 day period to lodge an appeal against it and if the date is missed no late appeal can be lodged. You should act promptly if an abatement notice is received. Take advice quickly because, in my experience, there are often grounds for appeal and having lodged an appeal, you will be in a positon to enter into discussions with the local authority to resolve the issues.

The best way to avoid getting a notice is to avoid causing a nuisance, so it is a good idea to look critically at your business and to take advice as to how to minimise noise, dust and other nuisances. Some simple steps which cost little or nothing can go a long way.

Two things arise here – firstly, keeping on good terms with the neighbours and with an open door to receive complaints in a constructive way can prevent complaints ever being made to the council.

Secondly, it is a ground of appeal against an abatement notice (and defence to a prosecution for breach) that you were using best practicable means to abate the nuisance. Taking advice as to how to do that not only results in the best solution (with the right advice) but is also part of the evidence that can be put forward that best practicable means were being used. In many circumstances a business need not avoid creating the nuisance altogether, just be doing the best it practically can at the date of service of the notice to minimise it. This means having systems in place, recording them, operating them and auditing them. Good record keeping is key to proving that best practicable means were in place at the key moment.

Birketts has an experienced Environmental Team and we are happy to advise in relation to statutory nuisance. We have a number of experienced advocates who can deal with both abatement notice appeals and prosecutions, so please contact Deborah Sharples in the first instance and she or another one of our team will be pleased to talk to you.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2020.