CHAPTER TWO – WHAT IS A STATUTORY NUISANCE?
“Statutory Nuisance” is defined in s79 EPA. This is a definition which applies equally to Local Authority Abatement Notices (under s80 EPA) and private prosecutions for Abatement Orders under s82 EPA. It is therefore a more far-reaching definition than is likely to be used for s82 EPA prosecutions including, eg. under s72(1)(g) EPA a definition of noise nuisance.
For the purposes of s82 EPA the almost exclusive definition is s79(1)(a):
Any premises in such a state as to be prejudicial to health or a nuisance
It must be proven that the state of the premises is such as to be:
- Prejudicial to health; or
- A nuisance
2.1 “Prejudicial to Health”
“Prejudicial to health” is defined in s79(7) EPA: means injurious or likely to cause injury to health. In order to prove that the state of the premises is injurious or likely to cause injury to health, expert evidence is required (please see Ch 8) but medical evidence is not.
O’Toole v Knowsley MBC (2000) 32 H.L.R 420
The decision of the Magistrates’ Court to dismiss an application under s82 EPA as the Complainant had not adduced medical evidence of the effect of the mould/damp on herself or her children was quashed by the High Court. The evidence of the expert as to how the state of the premises was prejudicial to health was sufficient and the Justices were not entitled to reject it due to the absence of medical evidence in support.
2.2 “Or a Nuisance”
The term “nuisance” is not defined in the Act or in any citing caselaw. It is unfortunately circular that the definition of nuisance under s79(1)(a) can come down to a “statutory nuisance is a nuisance”.
The term should be given its natural meaning. The generally accepted definition adopted by experts and the courts is substantial or unreasonable interference with the Complainant’s use and enjoyment of the property.
If relying on this part of the definition, the most pertinent evidence is likely to come from the Complainant as to the effect of the nuisance. For example, regularly seeing mice in the kitchen, cleaning mouse droppings continuously, disposing of dead mice, lack of sleep and/or anxiety related to the mice presence, children refusing to go into parts of the house etc.
It should be noted that, although not required by the Act, the courts tend to import an objective element to this definition, ie. what would a reasonable person be expected to tolerate? Whilst one individual might find a small patch of damp in their bathroom irritating and unsightly it would be unlikely that the court would accept that this was enough to amount to substantial interference with a reasonable person’s use and enjoyment of the property. However, if there were widespread black mould all over the sole family bathroom, this would be far more likely to reach the objectivity threshold.
Even if relying on this limb, expert evidence will still be required to establish that the nuisance arose due to the state of the premises and that the Defendant is the “person responsible” (see Ch 3.2).