Private Statutory Nuisance Claims

Section 82 of the EPA 1990 is a means for a person to take statutory nuisance proceedings in his or her own right to obtain an abatement order, without the need to serve an abatement notice. Proceedings under s.82 are a type of statutory nuisance proceedings (the legislation describes them as “summary proceedings by persons aggrieved by statutory nuisances”).  It is important to note that s.82 proceedings are criminal in nature not civil.

S.82 is an important piece of legislation which enables 'aggrieved’ tenants to obtain redress via an abatement order, providing relief from nuisance and potentially resulting in the conviction of the defendant, with no requirement to serve an abatement notice on the defendant. The ‘aggrieved’ person begins the statutory nuisance procedure by making a complaint to the local magistrates’ in relation to one of the categories prescribed under s.79 EPA 1990.

The person ‘aggrieved’ must ensure that the prospective defendant has been warned (in writing) that the complainant will be making a complaint to the magistrates. In the case of a noise nuisance not less than three days’ warning must be given. In the case of any other nuisance, at least 21 days warning must be provided. This will give the recipient of the notice the opportunity to deal with the nuisance and to make sure that it is not likely to recur.

As stated above, s.82 proceedings are criminal, and therefore the criminal standard of proof applies. Should the proceedings be successful then the court has the power to make an abatement order for the defendant to abate the nuisance or to prevent the nuisance recurring. The magistrates must be satisfied that either (i) a nuisance exists, or (ii) it existed at the time of the complaint and has been abated, but that it is nevertheless likely to recur.

The magistrates may order the defendant to execute any works which may be required and may also fine the defendant. Further, as long as the complainant can show that as of the date of the making of the complaint there was in fact a nuisance, then the magistrates can require the defendant to pay to the complainant “such amount … as the court considers reasonably sufficient to compensate him for any expenses properly incurred in the proceedings”. This is so even if the Court does not make an abatement order. The amount of such compensation can include legal costs of making the complaint and applying for the abatement order.

It is worth noting that it is an additional criminal offence should a person on whom an abatement order has been served, “without reasonable excuse”, contravene any requirement or prohibition of such order. Also, that the defence of best practicable means does not apply in cases of nuisance where the premises have been rendered unfit for human habitation.