There is a provision within the Environmental Protection Act 1990 (section 82) for people to be able to take their own action against a neighbour who is materially interfering with the use of your property. This information is provided as an overview of the legal background and procedure for taking your own action. It must be emphasised however that the courts are very likely to expect that individuals have attempted to resolve matters informally before opting to proceed to a legal remedy.
There have also been significant changes introduced within the legal system over the last couple of years and this has had an affect on how the courts operate. It is recommended that you contact the courts directly to obtain guidance from them on as to current operating practices before embarking on this.
If you have been affected by nuisance and have been unable to resolve the problem, either informally or through the pollution team at the council, then you may want to take further action.
What is a nuisance?
Nuisance can be either continuous or intermittent and can occur at any time of the night or day depending on the type of activity that is causing an issue. It must adversely affect your comfort or quality of life. The affect must be substantial and your response to the nuisance must be wholly reasonable.
In this situation you will be approaching the magistrate’s court in order to take your own formal action. Please bear in mind that these courts have undergone a major reorganisation over the last few years and as advised it is worth getting up to date guidance from them on the Service they can provide prior to you undertaking your own action.
How to prepare your case
1. You should make sure that you know without doubt where the nuisance is coming from. It is not always obvious especially if you live in flats or converted dwellings.
2. A record should be kept of how often and when you have approached the person responsible for the nuisance and asked them to stop causing a problem. A magistrates’ court is unlikely to be very sympathetic to your case unless you can show that you have attempted to deal with the matter in a friendly non-aggressive manner face to face, before presenting your complaint to the court.
3. You must give a minimum of three days notice in the form of a letter to the person causing the nuisance. You must keep a copy of this letter yourself, as you may need it later to show the court.
4. You should keep a record of when the nuisance occurs and how long it lasts. A description of the nuisance for each event is also useful, especially if the nuisance is different each time. A note on the material affect the nuisance has upon you and /or your family should also be made i.e. smell was so strong affected breathing, noise was so loud it kept me awake etc. A diary sheet is useful for this purpose.
5. You may not be alone in your suffering. Speak to your neighbours and find out whether the nuisance is affecting them too. They might be prepared to attend court as witnesses on your behalf. Independent witnesses will greatly benefit your case.
6. It is essential that you obtain and record the full name and address of the person creating the nuisance. This information may be obtained from the Electoral Register available in most public libraries in residential cases. In extreme cases you may have to undertake a land registry search.
Procedure in the Magistrates’ Court
If the nuisance continues unabated and you have followed the procedures outlined above, you will need to obtain a summons from your local magistrates’ court. As mentioned previously you should contact the courts for current guidance on the service that they are offering.
This means that the person causing the nuisance has to attend a court hearing so that the matter can be discussed. Prior to obtaining this summons it would be desirable, although not essential to discuss this matter with a solicitor. (The Citizens Advice Bureau may also be able to assist you).
Obtaining a summons involves the following steps:
- Locate the nearest magistrates’ court available to deal with your case.
- Once at the court, you will have to visit the warrant officer and explain why you want to issue a summons under the provisions of the Environmental Protection Act 1990 Section 82.
- Normally a police officer will take details of the summons required. Often summons requests may be queried, should this happen ask to speak to the clerk of the court or one of the deputies, so that they can be satisfied that a summons can be issued.
Once in the courtroom you will have to wait until the magistrates arrive. When your name is called you must state that you require a summons under Section 82, Environmental Protection Act 1990 and explain the details or circumstances of your request. All relevant evidence should now be presented. The clerk of the court or one of the deputies will prompt you on the order of your submission to the court. This is where your note book or diary entries should be made available.
- The magistrate will then decided whether there is an arguable case and a summons will be issued.
- The police officer in the court will take relevant details and give you a note, which must be taken to the court’s general office. The court officer will issue a summons against the person responsible for the nuisance and will give you a date and time for a court hearing.
- At this stage of the procedure, you should now seriously consider whether you want a solicitor to represent you at the actual hearing. Alternatively you may decide that you will conduct the case yourself.
- On the day of the hearing if the defendant appears in person and pleads guilty, you will only need to present the general circumstances of the case. The court will then make an order requiring the abatement of the nuisance or prohibiting its recurrence.
- If the defendant pleads “not guilty” you will then have to prove your case by giving evidence under oath and calling any or all of your witnesses. The defendant can question you and your witnesses. They may also call witnesses of their own. If the defendant gives evidence or calls any witnesses, you will also be able to question them. You can only question them on the facts pertaining to the nuisance problem.
- If the court substantiates your claim it will make an order requiring the abatement of the nuisance or prohibiting its occurrence, and may fine the person responsible up to a maximum of £5,000, if the source is from a residential property. This increases to £20,000 for commercial premises.
- If the defendant fails to comply with this order they will be committing an offence and further court action will be necessary.
- If you are unsuccessful in proving your case, the court may ask you to pay the defendant’s costs. It is therefore most important for you to consider your case very seriously and why you are recommended to consult a solicitor.