Statutory Nuisance Law and Practice

by Pointing, John; Malcolm, Rosalind

• ISBN13: 9780199242467
• ISBN10: 0199242461
• Format: Hardcover
• Copyright: 2002-05-23
• Publisher: Oxford University Press

Summary

This is an authoritative book, which takes the reader through the practical and legal issues associated with each statutory nuisance and focuses on the problems the local authorities face in enforcing this area of law and for those advising defendants. The role, powers and duties of the local authorities, the problems associated with the drafting of abatement notices and with the prosecution of nuisance offenders are analysed comprehensively.

Author Biography

Rosalind Malcolm is University Director in Law at the University of Surrey where she lectures on a range of undergraduate, postgraduate and professional courses in aspects of environmental law, environmental prosecutions and expert evidence for lawyers, engineers and environmental health professionals. She also practises as a barrister in environmental and property law from Field Court Chambers, Gray's Inn.
John Pointing practises in environmental health and environmental law. He is an experienced trainer in legal matters for environmental health professionals, lawyers, and the medical profession and a Partner of Environmental Training Consultants.

Table of Contents

Table of Cases	xv
Tables of Legislation	xxxi
Synopsis
Introduction	1	(4)
Part I: Structure and Framework	5	(3)
Part II: The Specific Nuisances	8	(1)
Part III: Procedure and Evidence	9	(9)
Appendices	18
PART I: STRUCTURE AND FRAMEWORK
The Regulatory Framework
Enforcement authorities	1	(3)
Devolution	4	(3)
General powers of local authorities	7	(2)
Power of local authorities to prosecute	9	(2)
Local authority decisions	11	(4)
Appearance in legal proceedings	15	(3)
Limits to local authority powers	18	(2)
Local Government Ombudsman	20	(7)
Environmental health regulation by local authorities	27	(4)
Environment Agency	31	(3)
European dimension	34
The Historical Context of Statutory Nuisance and Public Health Legislation
Origins	1	(2)
Conceptual uncertainty	3	(2)
Legislative history	5	(1)
Early alternatives to statutory nuisance	6	(1)
Nuisance in the Industrial Revolution	7	(4)
Growth of a `sanitary paradigm'	11	(6)
Present-day historicism	17	(4)
Legislative intention	21
The Concept of Statutory Nuisance
Introduction	1	(3)
The list of statutory nuisances	4	(4)
'Prejudical to health or an nuisance'	8	(1)
Origins of the two limbs of statutory nuisance	9	(2)
The modern judicial approach	11	(5)
The nuisance limb	16	(9)
Public nuisance	25	(3)
Private nuisance	28	(6)
Public, private and statutory nuisances: differences and overlaps	34	(3)
The nuisance limb and the health limb	37	(4)
Is the nuisance limb limited to those matters which might also be `prejudicial to health'?	41	(7)
Distinguishing the health and nuisance limbs	48	(7)
Reasonableness as a central concept of common law nuisance and its relevance to statutory nuisance	55	(27)
The health limb	82
PART II: THE SPECIFIC NUISANCES
Premises
Premises as a statutory nuisance	1	(3)
Meaning of `premises in such a state...'	4	(1)
`State' of the premises	5	(25)
The meaning of `premises'	30	(7)
Vessels	37	(2)
Premises suffering from dampness, condensation and mould	39	(11)
Can empty premises be prejudicial to health?	50	(4)
Identifying the premises	54	(2)
Liability for escape of the land itself	56	(17)
Public sewers	73	(1)
Defining `premises' in other contexts	74	(6)
Defences	80	(3)
Alternative provisions relating to premises	83	(23)
Leasehold premises	106
Noise and Noise Nuisance
Introduction	1	(8)
Noise and statutory nuisance	9	(6)
Public nuisance	15	(3)
Legislative background of statutory noise nuisance	18	(4)
Section 79(1)(g) of the EPA 1990: `noise emitted from premises so as to be prejudicial to health or a nuisance'	22	(10)
Legal requirements and the role of enforcement officers	32	(4)
A Scope of noise nuisance	36	(4)
Neighborhood and domestic noise	40	(11)
Noise Act 1996	51	(12)
Audible intruder alarms	63	(2)
Entertainment noise	65	(5)
Entertainment noise and statutory nuisance	70	(5)
Drafting noise abatement notices under the EPA 1990	75	(4)
Noise emitted from industrial, commercial and business premises	79	(3)
The defence of best practicable means in noise cases	82	(9)
Noise in the street and other public places	91	(11)
Noise from construction sites	102	(17)
Statutory nuisance and other forms of noise control	119	(19)
Conclusion	138
Atmospheric Emissions
Origins	2	(3)
Smoke emitted from premises: application of subsection (1)(b)	5	(9)
Fumes or gases emitted from premises: application of subsection (1)(c)	14	(3)
Dust, steam, smell etc: application of subsection (1)(d)	17	(11)
Defences	28	(1)
Smoke, fumes or gases from vehicles, etc on a street: application of subsection (1)(gb)	29
Animals
Origins	2	(1)
Definition of `animals'	3	(2)
Animals as a statutory nuisance	5	(13)
Bye-laws	18
Accumulations and Deposits
Origins	2	(2)
The waste management regime	4	(1)
Definitions	5	(4)
The obligation co remove accumulations	9	(2)
The nuisance or health limb requirement	11	(3)
The defence of `best practicable means'	14
Miscellaneous Nuisances in Other Legislation
Statutory nuisances and watercourses	2	(6)
Meaning of watercourses	8	(11)
Persons who may be liable	19	(3)
Land Drainage Act 1991	22	(4)
Tents, vans, sheds and similar structures	26	(4)
Domestic water supply	30	(3)
Fencing of abandoned and disused mines and quarries	33
PART III: PROCEDURE AND EVIDENCE
Implications of the Human Rights Act 1998
Background to the Act	1	(1)
Applicable to all acts or decisions taken by public authorities	2	(5)
Application to acts of private individuals	7	(2)
Relationship between Convention rights and UK legislation	9	(5)
Persons entitled to bring judicial review proceedings under the Human Rights Act 1998	14	(3)
Impact of the Human Rights Act 1998 on local authority decision-making	17	(13)
The right to property	30	(3)
Article 8: Right to respect for private and family life	33	(9)
Article 7: No punishment without law	42	(4)
Article 6: Right to a fair trial	46	(23)
Regulation of Investigator Powers Act 2000	69	(3)
Application of the Regulation of Investigator Powers Act 2000 to statutory nuisance	72	(15)
Application of the Regulation of Investigatory Powers Act 2000 to statutory nuisance enforcement: Conclusions	87
Enforcement: Use of Abatement Notices
Introduction	1	(1)
Duty to inspect	2	(4)
Duty to respond to complaints	6	(6)
Is there a duty to consult?	12	(5)
Abatement notices: technical requirements	17	(41)
Time limit for undertaking work	58	(2)
Service of notices	60	(15)
Suspension of abatement notices	75	(3)
Withdrawing notices	78	(3)
Amending notices	81
Appeals against Abatement Notices
Introduction	1	(5)
Suspension of the notice	6	(6)
Grounds of appeal	12	(1)
Abatement notice is not justified by section 80 of the EPA 1990	13	(4)
Some informality, defect or error in, or in connection with, the adatement notice	17	(10)
The authority have refused unreasonably to accept compliance with alternative requirements, or the requirements of the abatement notice are otherwise unreasonable in character or extent, or are unnecessary	27	(10)
The time (or times) within which the requirements of the abatement notice are to be complied with is not reasonably St sufficient for the purpose	37	(4)
Best practicable means were used to prevent, or to counteract the effects of, the nuisance (regulation 2(2)(e))	41	(6)
In the case of noise nuisance from premises or in the street, the requirements imposed by the notice are more onerous than those provided in other statutory notices or consents I	47	(2)
Service on persons instead of the appellant or in addition to the appellant	49	(8)
Court's powers on appeal	57	(3)
Court's powers in respect of third parties	60	(3)
Amending the grounds of appeal	63	(2)
Pre-trial procedures	65	(3)
Procedures at trial	68	(3)
Costs	71	(14)
Appeal to the Crown Court	85	(8)
Appeal to the High Court	93
Offences and Prosecution for Breach of an Abatement Notice
Introduction	1	(3)
Offence of breach of abatement notice	4	(9)
Obstruction offences	13	(4)
Scope of 'obstruction'	17	(6)
Powers of seize and remove noise-making equipment	23	(3)
The decision to prosecute	26	(4)
Attorney-General's guidelines for bringing a prosecution	30	(4)
Public interest factors	34	(1)
Prosecutor's use of discretion	35	(2)
The Enforcement Concordat	37	(1)
The Enforcement Concordat	37	(3)
Formal cautions	40	(11)
Who to prosecute	51	(12)
Corporate defendants	63	(3)
Crown immunity	66	(2)
Costs	68	(3)
Where the prosecution succeeds	71	(14)
Defence costs	85	(2)
Costs where the prosecution is brought improperly	87	(1)
Wasted costs	88	(3)
Compensation orders	91	(3)
Appeals to the Crown Court	94	(8)
Appeals to the Divisional Court	102
Defences
Defence of best practicable means	2	(27)
Without reasonable excuse	29
Section 82 Proceedings
Introduction	1	(3)
Section 82 and housing defects	4	(4)
Person aggrieved	8	(3)
Person responsible	11	(4)
Nature of the proceedings	15	(1)
The procedure	16	(19)
Abatement order	35	(6)
Compensation orders	41	(11)
Costs	52	(5)
Defences	57	(2)
Appeals	59	(2)
Default proceedings	61	(2)
Checklist for lay prosecutor starting proceedings under section 82	63
Other Remedies
Introduction	1	(1)
Alternative dispute resolution and mediation	2	(9)
Injunctions	11	(11)
Public nuisance	22	(4)
Judicial review	26	(13)
The Wednesbury principle and human rights	39	(13)
Applying for judicial review	52	(5)
Overlaps with other statutory regimes	57	(1)
Contaminated land	58	(3)
Authorization of nuisance by planning permission	61	(7)
Harassment	68
Overview of Evidential Issues and Preparation for Court
Introduction	1	(1)
The investigation	2	(1)
Using photographs	3	(6)
Using noise measurements	9	(7)
Using tape recordings	16	(1)
Using other technical and scientific data	17	(5)
Using documentary evidence	22	(13)
Using expert witnesses and opinion evidence	35	(8)
Officers' notebooks	43	(3)
Witness statements	46	(9)
Advance disclosure	55	(23)
Admissibility of Evidence and the court hearing	78	(251)
Appendices	329	(44)
A. Environmental Protection Act 1990-Extracts	331	(16)
B. Statutory Nuisance (Appeals) Regulations 1955, SI 1995/2644	347	(4)
C. Other Legislation	351	(22)
Index	373