Taking your own action under Section 82 of the Environmental Protection Act 1990
The Environmental Protection Act 1990 Section 82 states that a magistrates court may act on a complaint made by any person on the grounds that he/she is aggrieved by the existence of a statutory nuisance. In order to take this form of legal action you do not need to be represented in court by a solicitor, however, you may consider it necessary to take independent legal advice from a solicitor, before commencing proceedings.
1) Write another letter to your neighbour
If you do wish to take the matter further on your own account, the act first of all requires you to write another letter to your neighbour, giving them written notice of your intention to bring proceedings and setting out the matter complained of including the dates and times of the alleged nuisance. Describe the nuisance and the effect it has upon you. Keep a dated copy. You must allow at least 3 clear days between the date you delivered the letter and the date you attend the magistrates court to make your complaint.
2) Arrange to attend the Justices' Clerk's office
- It is advisable to make a prior appointment to attend the Justices' Clerk's office at the magistrates court.
- Arrangements will be made for you to appear before a Justice of the Peace to whom you will be able to recite the substance of your complaint (this means you will need to recall the complaint details to the Justice of the Peace).
- If the Justice is satisfied he or she will authorise the issue of a summons (the notice to the person responsible for the nuisance to appear before the magistrates court).
- It is your responsibility to draw up that summons and serve it.
- Service (the giving or sending of the summons) may be effected either personally on the defendant (the person responsible for the noise) or by posting the summons by first class post to the defendant's address.
- If the defendant does not appear at the hearing you will be required to satisfy the court that the summons has been properly served. It is essential therefore to keep a written record of how you served the summons.
3) The court hearing and the verdict
If the Justice of the Peace authorises the issue of a summons, then the court will arrange a hearing at which the defendant will be summoned to appear. Having heard both the complainant and defendant, the court will decide whether or not a nuisance exists or is likely to recur. The court will either dismiss the case or make an order requiring the defendant to:
- abate the nuisance within a specified time and carry out any necessary works for that purpose, and/or
- prevent the recurrence of the nuisance and carry out any necessary works, again within a specified time and may also impose on the defendant, a fine not exceeding level 5 on the standard scale (£5,000)
What are the costs of taking a court case?
It is not the intention of the Council to put you off taking your own action but to make it clear to you the potential financial implications. If you have a sound case there is no reason why the court will not grant an abatement order.
The court will make an administration charge dependant on action that is taken. The court will provide details of this when contacted. It should of course be remembered that if you bring such a case before the magistrates court, and fail to prove your case, then you might be required to pay the costs incurred by the court and the costs of any witnesses summoned to appear.
The court may also require you to pay the defendant's costs. As you can see, your costs could be considerable. For this reason alone you need to be sure of your case before you start a court action and you may consider that seeing a solicitor is advisable.
If you prove your case and an order is made, the court shall require the defendant to pay such an amount, as the court considers reasonably sufficient to compensate you for the costs incurred in bringing the case. This amount will cover the time from when you make your complaint to the conclusion of the proceedings. This recognises that the defendant ignored the letter warning him/her of your intention to prosecute.
The above procedure only relates to action for noise, which you feel amounts to a statutory nuisance. It in no way affects your right to pursue an action under common law. If you wish to sue for damages (if, for example, the noise has lost your business money) you are advised to consult a solicitor.
If the order is defied
If the nuisance continues in contravention of the order you should make careful note of the dates, times, etc and you may then wish to lay an information alleging that the defendant has committed an offence by not complying with the court order. You may seek to have the defendant brought back to a further hearing for which further legal proceedings may be taken for the alleged offence.
An additional fine and/or a daily penalty of £500 for every day the offence continues may be imposed.