Taking a neighbour to court.

If your neighbour's smoke is affecting you then you are within your rights to take them to court if the Council have been unable to do anything about it.

Statutory nuisance is something that, under the Environmental Protection Act 1990, affects a person's health or causes disturbance to them in their property. Nuisance can broadly be defined as something that unreasonably affects somebody's use and enjoyment of their home and property.

To be a statutory nuisance a smoke must occur regularly and continue for a period of time that makes it unreasonable. Speak to the neighbour. A reasonable person will listen to you and take steps to accommodate you. If this fails then go to your local authority but it is better to try a friendly approach first.

If the nuisance persists, you should write to the person responsible explaining about the effect it is having on you. Ask them to stop causing the problem, referring to any conversations you may have had and what, if anything, he or she agreed to do about it. Keep a copy of the letter. Start a diary recording the dates and times of any problems, the effects on you/your property, and keep a record of any conversations you have or letters you write.

LOCAL AUTHORITY ACTION ON NUISANCE
If you are not able to resolve a nuisance problem yourself, contact your local authority Environmental Health Department (but see above for other names for this service). They must investigate your complaint, and you should ask for details about how they will do this. They must take action on your behalf if they believe a statutory nuisance is occurring, or likely to occur or recur. Section 79 of the Environmental Protection Act says they must take “such steps as are reasonably practicable” to investigate your complaint. They may write to or visit the person causing the nuisance, asking them to take any steps that may be necessary to reduce the problem.

If the nuisance continues, an Environmental Health Officer (EHO) or Technical Officer may well visit, ideally at a time when you expect the nuisance to occur, in order to see whether in their judgment it represents a statutory nuisance. If the local authority is satisfied that a statutory nuisance exists, they must issue a notice requiring the person responsible to stop causing the nuisance. If the person, without reasonable excuse, fails to comply with the notice he or she is guilty of an offence and can be prosecuted by the local authority.

EHO's are the recognised experts and their professional judgemental is very important – if they consider that a nuisance is being caused a Magistrate will normally accept their view. However the EHO may consider that a nuisance is not being caused. The problem may still upset you badly, and the EHO may be very sympathetic to the effect it is having on you personally, but they may not be able to say in all honesty that it would really represent a nuisance to the “average” person.

Most local authorities take nuisance problems very seriously and will do their best to help. However, If you feel that the Council is not fulfilling its legal obligations, take the matter up with your local councilor, and/or the councillors on the appropriate Scrutiny Commission – the local library or town hall will be able to tell you who these are and, again, they should be listed on the Council’s website. If this does not produce any results you can usually make a formal complaint against the Council to which they are obliged to respond. As a last resort, complain to the Local Government Ombudsman:

Local Government Ombudsman England
Tel: 0845 602 1983

Local Government Ombudsman Wales
Tel: 01656 661325
Email: enquiries@ombudsman-wales.org

Scottish Public Services Ombudsman
Tel: 0800 377 7330
Email: ask@spso.org.uk

Northern Ireland Ombudsman
Tel: 0800 343424
Email: ombudsman@ni-ombudsman.org.uk

MEDIATION SERVICES
Mediation is an informal process to help people in dispute find permanent and acceptable solutions. Local people act as trained conciliators to help both parties resolve the problem. There are many local mediation schemes in the UK. Ask your local council or advice centre if there is one in your area.

LEGAL ACTION
Some nuisance problems only happen occasionally, and it may not always be possible for an environmental health officer to witness it. Some local authorities may find it difficult to deal with nuisance problems as fully as they might like because of staff shortages. If for any reason they do not feel able to take action, you can take action yourself through the Magistrates Court under Section 82 of the EPA. This is quite simple; you do not need a solicitor and it need not cost much.

You will need to prove to the Magistrate beyond reasonable doubt that the problem you are complaining of amounts to a nuisance. The diary you keep will be important evidence, as will any independent witnesses you can call to give 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 add considerable weight to your claim.

Write to the offender informing them that the nuisance has not been abated and that unless they cease it by a certain date (say, two weeks time) you will complain to the Magistrates Court. Keep copies of all letters. If this is ignored, contact the Justices Clerk’s Office at your local Magistrates Court, explaining that you want to make a complaint under Section 82 of the Environmental Protection Act 1990. The Clerk of the Court should advise you how to proceed further. A solicitor can do all this for you (a letter from your solicitor to your neighbour would also indicate that you mean business) but this will involve some expense.

A date will be set for the hearing and the person about whom you are complaining will be summoned to attend Court. You will be required to explain the problem and should produce evidence – diaries and any independent witnesses. You will have to give your evidence, and cross examine your own supporting witnesses. The person you are taking action against will be able to cross examine you and your witnesses and produce their own evidence. 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. The Court also has the power at the time the nuisance order is made to impose a fine on the defendant. If this order is ignored, further Court action will need to be taken; so continue to keep records of the nuisance in case it proves 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.

For further advice contact the Environmental Law Foundation.

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