A Reminder About Statutory Nuisance

The issue of nuisance, particularly noise nuisance and the impact of the night-time economy on residential areas, was brought into the spotlight recently following the Manchester and Salford Magistrates’ Court hearing – Night & Day Cafe v Manchester City Council.

The case was the result of complaints of noise from the occupants of a flat adjoining the cafe, which was also a night-time music venue. The council, having assessed there to be a statutory nuisance, served an abatement notice, which was subsequently appealed. On hearing the case, which made reference to several key pieces of case law, the court decided to vary the notice in favour of the venue. The court confirmed the presence of a statutory nuisance and the council’s duty to serve an abatement notice, but varied the notice to require sound limiters as best practicable means.  I had the pleasure recently of speaking to Tim Everett, widely respected environmental health practitioner and Fellow of the Chartered Institute of Environmental Health, on the recent completion of his PhD thesis, ‘The Effectiveness of the Statutory Nuisance Procedure’. Tim is widely known for his expertise on nuisance law and kindly agreed to write the following article from the nuisance section of his thesis, highlighting the principles and most recent case law on the subject including, amongst others, the Supreme Court’s judgment in the case of Fearn and others v Board of Trustees of the Tate Gallery. 

Statutory Nuisance: The meaning of nuisance  
By Dr Tim Everett LLB LLM PhD FCIEH CMCIH FRSPH CEnvH  

This is an abridged summary of relevant sections in my PhD thesis on the effectiveness of the statutory nuisance procedure.  

1. Most extant categories of statutory nuisance in the UK contain the phrase ‘prejudicial to health or a nuisance’. These have long been held to be two separate ‘limbs,’1 only one of which needs to be proved. Both my research and that of others show that practitioners mostly rely on the nuisance limb when serving abatement notices.2 There is no prescribed form for such a notice, and it is not necessary for it say which limb is being relied on.3 However, the evidence needed on an appeal against the notice or a prosecution for non-compliance is likely to be different. 

   
   

2. The key issue then is what the word nuisance means in this context. Following the decisions in McNally4 and Thorne5, it means the same as at common law. In most of the UK (but not Scotland) there are two torts of nuisance – private nuisance and public nuisance. Most notices are clearly based on private nuisances, so this article will focus on how this has been defined by the courts, including in cases which have reached our Supreme Court. Contrary to what some colleagues think, the common law is alive and kicking, and continues to be developed and refined. Because of this umbilical link with the nuisance limb, it means that case law on such nuisances has an impact of the use of the statutory nuisance procedure. 

   
   

3. Conventionally,6 there are three types of private nuisance, one category of which is called amenity nuisance. McNally is one of the authorities for arguing it is only this one which is relevant for statutory nuisance. The others (obstruction, encroachment, or damage to land) are not. A more recent Court of Appeal case said that the boundaries must not be applied rigidly, in finding that Japanese Knotweed on neighbouring land was an amenity nuisance as it was affecting the use and enjoyment of two nearby houses.7 In addition, McNally also supported the decisions going back to Bishop Auckland, which said that it must be something that affects human comfort – so a private nuisance that only interfered with pets or livestock could be actionable at common law but not as a statutory nuisance, even if it fitted into a category such as noise, etc.   

   
   

4. A key feature of private nuisance is that it is about interference with a property right. The House of Lords made clear in Hunter that this is not just about who can sue, but that without such rights there is no private nuisance.8 The question of whether a complainant has such rights – as a freeholder, leaseholder, or tenant with exclusive rights of occupation – may therefore sometimes be relevant for our purposes.  

   
   

5. While lawyers representing appellants and defendants from time to time try to argue that something has got to be more than a common law nuisance to be a statutory nuisance, the courts have rejected this. A good example is Rose LJ in Godfrey,9 who made it clear that the test for a statutory noise nuisance was the same as for a common law noise nuisance. This was summarised in that case as noise which unreasonably interfered with the complainants’ use and enjoyment of their land taking account of the nature of the area, as judged by the standard of a reasonable man. It was unnecessary to show that it was at any particular decibel level or above the ambient background. Other standard factors to be considered as part of an assessment of the interference are things like duration, frequency, timing and impact.  

   
   

   

   
   

6. Frequent questions are around the extent to which planning permission gives a defendant protection against a claim of nuisance. The Supreme Court has made it clear that such permission cannot authorise a nuisance, and that at most it will be one factor among others in judging the nature of the locality.10 Similarly, the possession of something like an environmental permit11 cannot authorise a nuisance arising from the permitted activities – even if the defendant is complying with its conditions.12 It will anyway be down to the defendant to prove that they were complying. In situations where the permit is an old one, the defendant may find it difficult to claim they were using ‘best practicable means’13 if an abatement notice is served, either on appeal against the notice,14 or as a defence on prosecution for non-compliance with it.15 The courts have also made it clear that councils have continuing duties to investigate statutory nuisance complaints arising from permitted sites and to serve abatement notices.16 The requirement to seek ministerial consent17 applies only to a subsequent prosecution.18 

   
   

7. These cases lead us to the recent decision of the Supreme Court in Fearn,19 and Lord Leggatt’s judgment for the majority sets out a clear and comprehensive review of the development and current principles of private nuisance. It is the starting point now for anyone who wishes to understand what this means, and elements of the standard textbooks will need to be re-written. It confirms the following principles: 
   
   

   • Private nuisance is about the protection of land and the enjoyment of land and property rights against interference. The nature of the harm is to be assessed in the reduction of the property’s amenity value.  

   • The test is an assessment of the reasonableness of the outcome, not whether the activities complained of were reasonable. The term ‘reasonable user’ has been confused – it had never been a defence to a claim in nuisance that the defendant was making reasonable use of their land.20 To escape a finding of nuisance, the defendant must show that they are making ordinary use of their land and having due regard to their neighbours. The old case of Bamford was highlighted as still being good law.21  

   • The interference must be substantial – which means more than minor.22  

   • The test is an objective one – the interference is to be judged from the standards of the ordinary person.23  

   • The nature of the locality is important in making this judgement.24 

   • Coming to the nuisance is no defence – the Supreme Court has again avoided reviewing this established principle. This says the existence of the nuisance-causing activity many years before may provide no defence.25  

   • Whether or not the defendant’s activities are of public benefit is irrelevant to a finding of nuisance but may be relevant to the remedy.  

   • Once nuisance is established, the onus to mitigate it lies wholly on the defendant – in this case it was not up to the claimants to put up blinds or curtains to stop the visual intrusion.  

   • The categories of nuisance at common law are not closed – the law will be developed to deal with new problems as they arise, subject to the tests set out above.     

The relevant sections of the thesis will be posted on Tim’s website ‘Environmental Health Law’ over the next few weeks for those who want to see more detail.  To discuss nuisance, share best practice and ask questions of your peers, join the conversation for free on RIAMS Communities.      

1 The Bishop Auckland Local Board v The Bishop Auckland Iron and Steel Company Limited (1882) 10 Q.B.D. 138. 

2 Section 80(1) of the Environmental Protection Act 1990.  

3 Lowe & Watson v South Somerset DC [1998] Env LR 143; R (on the application of Fullers Farming Ltd) v Milton Keynes Council [2011] EWHC 3784 (Admin) [2012] Env LR 17, and see case comment by McManus SPEL 2013, 155, 21–22. 

4 Salford City Council v McNally [1976] AC 379. 

5 National Coal Board v Thorne [1976] 1 WLR 543. 

6 See ‘The Boundaries of Nuisance’ (1949) 65 LQR 480 by Professor Newark. 

7 Network Rail Infrastructure Ltd v Waistell and Williams [2018] EWCA Civ 1514. 

8 Hunter v Canary Wharf Ltd [1997] Env LR 488. See Lord Goff at 496 to 504, Lord Lloyd at 505 to 509, Lord Hoffman at 513 to 520, and Lord Hope at 536 to 539. 

9 Godfrey v Conwy County Borough Council [2001] Env LR 38. 

10 Coventry (t/a RDC Promotions) v Lawrence [2014] UKSC 13, [2014] Env LR 25, confirmed in Fearn and others. 

11 Environmental Permitting (England and Wales) Regulations 2016 SI 2016/1154 as amended. 

12 Barr & Others v Biffa Waste Services Ltd [2012] EWCA Civ 312. 

13 Section 79(9) of the 1990 Act.  

14 Section 80(3) of the 1990 Act. 

15 Section 80(4) and (5) of the 1990 Act. 

16 R v Carrick District Council ex parte Shelley [1996] Env LR 273, and R (on the application of Ethos Recycling Ltd) v Barking and Dagenham Magistrates’ Court [2010] Env LR 25. 

17 Section 79(10) of the 1990 Act. 

18 R (on the application of Ethos Recycling Ltd) v Barking and Dagenham Magistrates’ Court [2010] Env LR 25. 

19 Fearn and others v The Board of Trustees of the Tate Gallery [2023] UKSC 4. 

20 Southwark London Borough Council v Tanner [2001] 1 AC 1. 

21 Bamford v Turnley (1862) 3 B & S 66. 

22 St Helens Smelting Co v Tipping (1865) 11 HL Cas 642. 

23 Walter v Selfe (1851) 4 De G & Sm 315, and Barr v Biffa Waste Services Ltd [2013] QB 455.   

24 Sturges v Bridgman (1879) 11 Ch D 852. 

25 Miller v Jackson [1977] QB 966.