Pollution Control - nuisances

Part 3 of the Environmental Protection Act 1990 requires us to take reasonable steps to investigate and, if appropriate, to take formal action to in the event of justified complaints of statutory nuisance.  A Statutory Nuisance in this context can include emissions of noise, visit our Pollution control pages for information on noise, smoke, fumes or gases, dust, steam and smell. The emissions must arise from premises and must materially affect the use of enjoyment or other premises.

Typical of complaints of this type are smoke and ash from garden bonfires, smoking chimneys, dust from building and demolition activity and cooking smells from restaurants. The legislation does not allow us to deal with complaints of smells arising from domestic premises.

What can you do?

Approach your neighbour and explain politely that you are being troubled by the noise. They may genuinely not be aware that they are causing a problem and reduce the noise.

If this is not successful, write to your neighbour. Explain the effect the noise is having on you and ask them to stop making a noise nuisance. Keep a copy of the letter.

Start a noise diary. Record the dates and times of any noise problems, note what is causing the noise, its duration and the effect that it has on you. Keep copies of any letters sent and of notes of any discussions you have about the noise, with the person causing the problems.

If the noise nuisance continues or if you are worried about contacting the person causing the noise, you can contact the Environmental Protection Section of Torbay Council. Explain the problem, and give them the noise diary. Ask them to investigate the problem for you.

If your neighbours are housing assocation tenants you can also send a copy of the information to the Housing Manager.

What will the Council Do?

The Environmental Protection Section will look at your complaint and diary to see what the problem is. If they are able to they will deal with the complaint without revealing your name to the person causing the nuisance, unless you give permission for it be given.

However, it may take court action to stop the nuisance and the Council may need you to act as a witness. You should be aware of this, but it may not come to that stage.

The Environmental Protection Section will usually write to the people alleged to be causing the nuisance, and explain the situation to them . This usually cures many  complaints.

If the problem continues and is considered a statutory nuisance an abatement notice will be served and followed up to get the nuisance stopped. This is dependant on their being sufficient evidence.

For more information please read our policy on general complaints.

What other action can I take?

You may wish to consider taking your own action under section 82 of the Environmental Protection Act 1990.

In some circumstances the council may be unable to get sufficient evidence to be able to take action on behalf of an individual who has made a complaint. Should this occur, you can take independent action by complaining direct to the Magistrates' Court under section 82 of the Environmental Protection Act 1990. This is quite simple and need not cost much; you do need to employ a solicitor, but is advisable to obtain some legal advice.

Before approaching the court, it is a good idea to write to your neigbour saying that unless the nuisance is abated by a certain date (e.g. two weeks) you will complain to the Magistrates' Court. Keep a copy of all correspondence. If your neighbour ignores either a verbal or written request by you to abate the noise, contact the Justices' Clerk's Office at your local Magistrates' Court, explaining that you wish to make a complaint under section 82 of the Environmental Protection Act 1990.

The Clerk of the Court should be able to advise you further. You must give at least three days notice of your intention to complain to the Magistrates' Court, to the person considered responsible for the nuisance. The notice should provide details of the complaint and may be delivered by hand or by post. A Solicitor can do this for you (a solicitors' letter will show you are serious). You need to prove to the Magistrate, beyond reasonable doubt, that the nuisance you are complaining about amounts to a statutory nuisance. The diary you keep will be important evidence. Although the law says that only one person needs to be affected for there to be a nuisance, in practice the evidence of other witnesses will strengthen your claim.

A date will be set for the hearing and the person about whom you are complaining, will be summoned to Court. You will be required to explain your problem and produce evidence of the disturbance. You will have to give your own evidence and cross-examine your supporting witnesses to draw out their evidence. The neighbour will be able to cross-examine you and your witnesses and may produce their own evidence. A Solicitor will help, but you can take action on your own. The law relating to business premises is slightly different: they can defend themselves by proving that they are using the "best practicable means" to prevent the nuisance.

If you prove your case, the Court will make an order requiring the nuisance to be abated, and/or prohibit recurrence of the nuisance. It also has the power at the time the nuisance order is made, to impose a fine on the defendant (currently up to £5,000). If this order is ignored, further Court action will need to be taken; you must therefore continue to keep records of the nuisance in case it is necessary to return to Court. If you fail to prove your case you may have to pay some of the defendant's expenses in coming to Court.

Are there Alternatives to Legal Action?

Nuisance disputes are often resolved informally. Legal action should be a last resort. It is unpleasant and will inevitably further sour the relationship between you and your neighbour. It is very important that you do your best to resolve any problem in a friendly way. The Council has a partnership with an independent mediation service who can help the resolution of neighbour disputes. Please contact us if you wish to discuss this further.

You can also visit our page on garden bonfires for further information