 |
 |
 |
|
Lionel Fynn Partner |
Philip Day Partner |
Jon Payne Solicitor, Barrister |
Sandra Graham Consultant solicitor |
Nuisance Proceedings
(Noise, Smoke, Dust, Odours, Pests, Light)
Particular problems that we have dealt with include noise from factories, barking dogs, noise and smell from adjacent properties, aircraft, cockerels, flies from stables and cattle sheds as well as pollution of streams and light from security systems.
The law of nuisance is very complex and based on hundreds of years of cases that have been considered by the Courts. Many nuisances are now dealt with by way of a piece of legislation called the Environmental Protection Act 1990, which permits local authorities and private individuals to take action. It is also possible to take action through the County and High Courts, to seek an injunction or compensation, although the procedure is not quite as streamlined.
Some of the factors that are taken into consideration in any legal proceedings include how long the problem has been going on for, how much it interferes with normal everyday life and whether the problem is intended to cause annoyance.
In respect to noise, of particular interest at the moment is the introduction of a night-time noise limit for licensed premises. Enforcement officers have the power to issue fixed penalty notices in addition to their other powers if it is shown that the level is exceeded after 11pm.
The Law Society is undertaking a consultation on the subject of nuisance. The consultation deals with the criminal offence of public nuisance rather than the tort and proposes :
Retaining the offence of public nuisance. Although most common law public nuisances now overlap with "statutory nuisances" under environmental or anti-social behaviour legislation, prosecutors are keen to keep the common law offence "in their armoury" for serious and persistent cases.
Retaining the conduct element as set out by the House of Lords in R v Rimmington [2005] UKHL 63.
Strengthening the fault element, so that it is no longer negligence-based. Under the proposed revised test, the defendant must be shown to have acted either intentionally or recklessly. A defendant would be reckless if, whilst realising that his conduct might cause a public nuisance, he unjustifiably went ahead regardless.
Restating the common law offence as a statutory offence, incorporating the revised fault element. For this purpose, the Law Commission is seeking views on alternatives to the standard textbook definition of public nuisance.
A copy of the consultation can be viewed by clicking here
email :karen @hlf-law.co.uk
Tel : 0800 043 0538
