Section 82 as a means for a person (including a company) to take statutory nuisance proceedings in his or her own right – the aim is to obtain an abatement order – no need to serve an abatement notice – criminal proceedings – initial warning – the terms of an abatement order – a fine – who should be the defendant? – recovering ‘expenses’ – the offence of breaching an abatement order – the defence of best practicable means – directing the local authority to undertake the necessary works – compensation and costs
Note: as explained further on this page, proceedings under s.82, Environmental Protection Act 1990 are a type of statutory nuisance proceedings (the legislation describes them as “summary proceedings by persons aggrieved by statutory nuisances”). With the important caveat that s.82 proceedings are criminal in nature, separate pages on this site consider what constitutes a statutory nuisance.
Section 82, EPA 1990 provides for summary proceedings to be taken by persons aggrieved of a statutory nuisance. Under this procedure, the categories of statutory nuisance are the same as for the procedures instigated and managed by local authorities under s.80.
The aim of the complainant under this procedure will be directly to obtain an abatement order, the making of which is the gateway to obtaining relief from the nuisance and which is likely to result, at the same time, in the conviction of the person responsible (the defendant). Section 82 has been a key piece of legislation over the years which has enabled aggrieved tenants to obtain redress for poor housing conditions. It is eminently usable in all classes of statutory nuisance.
It is useful to have an understanding of introduction to the whole scheme of Part III, Environmental Protection Act 1990 in outline to follow how it is that s.82 mirrors the standard procedure followed by a local authority when dealing with a statutory nuisance.
No abatement notice required
Importantly, there is no requirement within the context of the s.82 procedure for the complainant to have to draft and serve an abatement notice on the prospective defendant, with all the complexities which that involves.
Where a person is aggrieved by the existence of a statutory nuisance, then that person begins this statutory nuisance process by making a “complaint” directly to the local magistrate’s court as specified by s.82(1), EPA 1990. The complaint must be in relation to one of the prescribed categories which constitutes a statutory nuisance. They are set out in s.79(1)(a), EPA 1990.
Section 82(6),(7), however, requires that before issuing his or her complaint, 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.
The process in question is not the same process as that which applies when an abatement notice is served by a local authority. When the local authority serves an abatement notice, the person on whom the notice is served has a separate right of appeal against the notice. This is to ‘tidy up’ the notice (or even to get in quashed). Under the s.82 procedure, on the other hand, the person aggrieved of the nuisance proceeds directly to the issuing of the complaint with a view to a full hearing (although the court may well insist on an initial pre-trial hearing). The process is a truncated one, since there is no right of appeal pending the final hearing.
It is also worth adding that a “complaint” is ordinarily a term of art within the civil (rather than the criminal) jurisdiction of the magistrates (for instance as in an appeal against an abatement notice), but s.82 proceedings are in fact criminal in nature (see Botross).
The other thing to add, is that there are formalities for the complainant (the person aggrieved) to follow when delivering the complaint. On receipt of the complaint, the court will issue a summons for service on the defendant in order to secure the defendant’s attendance. The “complaint” in the context of s.82(1) is the laying of an information in order to secure the attendance of the defendant, who is facing a criminal allegation.
The terms of the abatement order
If the complainant succeeds before the magistrates (to the criminal standard of proof), then they have the power to make an abatement order. By s.82(2), EPA 1990, the abatement order will either require the defendant to abate the nuisance by a specified time, or prohibit a recurrence of the nuisance. The magistrates will make the abatement order if they are 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. In either case the magistrates may order the defendant to execute any works which may be required.
At the same time as the making of the order, the magistrates may also impose a fine on the defendant, a fine equivalent to that which may be imposed in the case of the consequential orders following a criminal conviction under s.80.
Who should be the defendant?
By s.82(4), EPA 1990 (and in similar terms to those which apply to a local authority which has issued an abatement notice under s.80) provision is made as to the identity of the person(s) who can be the defendant to proceedings for an abatement order (with special provision as to a defendant in the case of noise from a vehicle, machinery or equipment in a street).
A very important provision is s.82(12), EPA 1990 which concerns a complainant’s expenses. So 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.
The offence of breaching an abatement notice
As in the case of statutory nuisance proceedings instituted by a local authority (which provide for enforcement by criminal proceedings, should the recipient of an abatement notice not comply with its terms), s.82(8), EPA 1990 renders it an additional criminal offence should a person on whom an abatement order has been served, “without reasonable excuse”, to contravene any requirement or prohibition imposed by the order.
The defence of best practicable means
So too (as with enforcement by criminal proceedings of an abatement notice under s.80, EPA 1990), it can be a defence to be able to show that the best practicable means were used to prevent, or counteract the effects of a nuisance. The extent of the defence of “best practicable means” is broadly similar to that of enforcement by criminal proceedings, save that there are some modest differences. The defence is not available in the case of a nuisance which is such as to render the premises unfit for human habitation.
Directing the local authority to undertake the necessary works
In certain circumstances, the magistrates have power to direct the local authority to do anything which the defendant should have done, but did not do. Thus, on conviction for breach of an abatement order, by s.82(11), the local authority can be directed to do what the abatement order required the defendant to do. So too, by s.82(13), where neither the person responsible for a nuisance nor the owner of premises can be found, then the local authority can be required to do whatever the person responsible or the premises-owner might have been required to do. On the making of an abatement order, by s.82(3), the magistrates can prohibit the use of the premises for human habitation until they are made fit for that purpose.
Compensation and costs
As to provisions for compensation and costs (outside s.82(12), EPA 1990), it is necessary to look to the provisions applying in the case of orders following a criminal conviction under s.80, EPA 1990. There may also be alternative routes of appeal.
Section 82
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