The Environmental Protection Act 1990 provides a statutory basis for nuisance claims which arise from such problems as smoke, fumes, noise and vibration. Typically, a local authority would be responsible for enforcing the legislation and serving an abatement notice. If an abatement notice has been served, then failure to comply is a criminal offence. The alternative to the statutory route would be a common law claim for private or public nuisance.
The basis for this article is the recent Court of Appeal decision in the case of Lambert and others v Barratt Homes Ltd and another (2010), which clarified the law regarding landowners affected by hazards caused by their neighbours. I reviewed this last month, and hope to provide a broader overview of the law relating to nuisance here.
Private nuisance can arise from an action which affects a neighbour’s land, such as causing physical damage. Alternatively, the nuisance can prevent someone enjoying the benefit or enjoyment of their land. The interference can result from a one-off event, but is more likely to arise from a series of actions, and the nuisance must be substantial or unreasonable.
It should also be noted that a common law private nuisance claim can be brought by an individual who is the legal occupier of the land, but not by his or her visitors. It is also possible under common law for a public nuisance claim to be brought if the nuisance affects the life or health of the public or prevents the exercise of rights common to all.
Undoubtedly, prevention is better than cure every time. If your business has the potential to cause a nuisance, then you should ensure that the site is checked regularly for vermin, odours, dust, smoke and noise levels. You should also make sure that your staff take the risk seriously and are proactive in assisting you to get things right. If you are aware of a complaint, try to discuss the issue with the complainant as swiftly as possible because this may avoid a legal claim being made.
If a claim is brought under the common law regime, then the claimant may seek an injunction to stop the nuisance, as well as compensation for the damage caused to their property or for their loss of enjoyment. The court will need to assess the situation so that a reasonable balance of each party’s needs is achieved - what is an acceptable level of disturbance in one location may be considered unacceptable elsewhere.
But if the nuisance has been ongoing for some time, then this may make it more difficult for a claimant to succeed in obtaining an injunction or bringing a claim in general.
An additional defence to a common law nuisance claim is that of reasonableness. If your actions are reasonable, then you will not be liable for consequent harm to a neighbour’s enjoyment of their land.
Just because you have planning permission or an environmental permit, this will not automatically prevent a subsequent claim for nuisance arising from your actions. But the granting of planning permission may alter the nature of a locality such that when a court assesses the balance of each party’s needs, this may be taken into account.
Finally, if a local authority investigates a statutory nuisance claim, then it is likely that an environmental health officer will make an initial investigation before deciding whether to issue an abatement notice. The officer does not have to speak to you before serving the notice, but if the opportunity arises then it may be possible to take early action to prevent the need for an abatement notice.
Your focus should always be on avoiding a claim in the first place. Ensure that you have the means to assess and monitor the hazards and risks on your premises and, by doing this, it should be possible to minimise the chances of anyone accusing you of causing a nuisance.
Jeremy Eden is head of the waste, renewable and energy team at EMW Picton Howell