Statutory nuisance and the Environmental Protection Act 1990 (EPA)

The EPA says that for a noise to be a statutory nuisance it must either be a nuisance or prejudicial (injurious or likely to cause injury).

The assessment is made by regulatory services.

Some of the main principles that have to be considered are:

• The person affected must either be the tenant or the owner and cannot be a guest.
• The noise must cross a boundary and come from a different property or piece of land.
• It must be unreasonable and substantial.
• The assessment is based on the effect it would have on the ordinary reasonable person. 
• The assessment is about volume in addition to nature, frequency, and duration of the noise.
• Nature of the area is important too; something that is a nuisance in a rural area may not be a nuisance in an urban area.

As this is a criminal matter the standard of proof is beyond a reasonable doubt.

Abatement notices

Where it appears there is a Statutory Nuisance an abatement notice is served.   The NHO is advised afterwards and given a copy of the notice.

Appealing against a notice

From the date of service, a person has 21 days in which to appeal the notice.  Appeals are lodged at the local magistrate’s court.

If a person appeals the notice, and then loses the appeal, they can be prosecuted for any breach of the notice that occurred in the time they were waiting from the court to hear their appeal.

Breaches of an abatement notice

If a person fails to comply with the requirements of the notice, they can be taken to court and prosecuted and fined.  

The council has powers to seize noise-making equipment if a person fails to stop causing a nuisance.

A conviction for breach of a statutory nuisance abatement notice falls within the five conditions where the Council can apply for Absolute ground for possession.

Officers should seek legal advice before preparing a NOSP as there is a specific NOSP relating to mandatory possession in relation to ASB and an automatic right to review the decision.

Taking private action - EPA 1990

In certain circumstances we can advise people to take their own action such as in cases of noise complaints when a case is closed because of insufficient evidence and where we can’t use the formal remedies described earlier or where we are trying to encourage community resilience.

Action can be taken in the Magistrate’s Court under Section 82 of the Environmental Protection Act 1990.

The noise - taking private action form may be helpful to residents.