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APPENDIX 3.8 Service of Abatement Notices and Seeking Interdicts
(Extracted and modified from South Northamptonshire Council and LB Islington Guidance Notes)
1. DUTY TO SERVE ABATEMENT NOTICE
1.1 Where the Local Authority is satisfied that a statutory nuisance:
- exists; or
- is likely to occur; or
- is likely to recur.
It is required to serve an abatement notice:
- requiring the abatement of the nuisance or prohibiting or restricting its occurrence;
- requiring the execution of such works or steps as necessary for these purposes;
- specifying the time or times within which the notice is to be complied with (sect.80(1) EPA 1990).
1.2 The notice must also indicate the rights of the individual and time limits for appeal.
1.3 A notice may be served by a Local Authority to deal with a nuisance partly or wholly caused outside its area, but suffered within its area (Section 81 (2) EPA 1990).
2. PERSON RESPONSIBLE
2.1 The abatement notice is to be served:
- except as in b) and c) below, on the person(s) responsible for the nuisance;
- on the owner where the nuisance arises from any defect of a structural character;
- where the person responsible cannot be found or the nuisance has not yet occurred, on the owner or occupier of the premises (Section 80(2) EPA 1990).
2.2 Where more than one person is responsible, the notice may be served on each (Section 81(1) EPA 1990).
3. SERVICE OF NOTICES
3.1 Section 160 of the Environmental Protection Act 1990 states:
"(1) Any notice required or authorised (by or under this Act) to be served on or given to a person other than an inspector may be served or given by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
(2) Any such notice may:
(a) in the case of a body corporate, be served on or given to the secretary or clerk of that body;
(b) In the case of a partnership, be served on or given to a partner or a person having the control or management of the partnership business.
(3) For the purposes of this section and of section 7 of the [1978 c. 30.] Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of any person on or to whom any such notice is to be served or given shall be his last known address, except that
(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body; and
(b) in the case of a partnership or person having the control or the management of the partnership business, it shall be the principal office of the partnership.
For the purposes of this subsection the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.
(4) If the person to be served with or given any such notice has specified an address in the United Kingdom other than his proper address within the meaning of subsection (4) above as the one at which he or someone on his behalf will accept notices of the same description as that notice, that address shall also be treated for the purposes of this section and section 7 of the Interpretation Act 1978 as his proper address.
(5) The preceding provisions of this section shall apply to the sending or giving of a document as they apply to the giving of a notice."
3.2 Lambeth London Borough Council Vs Mullings (1990) confirms that service of an abatement notice through a letterbox is acceptable. The council appealed a dismissal by justices of an information alleging the respondent's breach of a noise abatement notice on the basis that the council were unable to prove they had served the notice on the person of the respondent. The High Court decided that although s.58(2) EPA 1990,Control of Pollution Act 1974 provided that other methods of service required statutory authorisation, s.233(2) EPA 1990, Local Government Act 1972 provided that local authority notices could also be served by leaving at the respondent's proper address. Accordingly the council had satisfied s.58 EPA 1990 of the 1974 Act by inserting the notice through the respondent's letterbox and the council's appeal was allowed.
3.3 It should be noted that where some of the requirements are contained in a separate letter or schedule, then great care should be taken in drafting these documents since the courts will consider these to be part of the notice and hence they will be subject to the same principles for validity as the principal part of the notice. 31The letter or schedule will be called by the court in aid when construing the notice. This is because there remains no prescribed form for notices and it is considered sensible to look at any accompanying documents in order to determine objectively how the notice would be understood by its recipient.
4. REQUIREMENTS OF A NOISE NUISANCE ABATEMENT NOTICE
4.1 The requirements of an abatement notice should be carefully and clearly drafted to make it clear how these will be fulfilled by the recipient. Enforcement may be impossible where the wording leaves any doubt about what the recipient must do or refrain from doing. However, the notice does not have to be so precise as to leave the recipient with no discretion as to how to comply. So, providing a full builder's specification is not required provided that it is clear from the notice what works must be undertaken. 32 In some cases it would be appropriate to leave it to the recipient to decide how he wishes to conform to a simple abatement notice, for example a notice served on the keeper of barking dogs causing a nuisance. 33
4.2 The noise problem to be resolved is an important factor for the local authority in deciding what form of notice to serve. Just because it has discretion whether to serve a simple abatement notice or a specific works notice 34 does not in any way imply that only simple notices should be served. A specific works notice might provide a fairer solution as well as often being an easier one to enforce, since it is only necessary to prove non-compliance with the notice rather than that a nuisance was occurring when the notice was breached.
4.3 The notice must prescribe the time or times within which there must be compliance with the requirements of the notice-s80(1). The notice must also include a statement which indicates that an appeal against the notice lies to the sheriff-Environmental Protection Act 1990 sch 3 para 6. The terms of the abatement notice must be both precise and practicable in its terms- Strathclyde Regional Council v Tudhope 1983 SLT 22. The notice can be worded to take immediate effect. It suffices that the recipient of the notice knows what is wrong, taking all external factors into account. The meaning of the notice need not be derived solely from within the four corners of the notice-Myatt v Teignbridge DC [1994] Env LR 18. The meaning can be derived from an accompanying letter-London Borough of Camden v London Underground Ltd. [2001] EHLR 101. The notice need not specify whether the adverse state of affairs which is the subject matter of the notice is either prejudicial to health or a nuisance. It suffices that the acts which constitute the nuisance are sufficiently specified to the extent that the person who is served with the notice knows what is required in order to abate it-Myatt.
4.4 It is perfectly lawful for the local authority simply to require the recipient of the notice to abate the relevant nuisance-Budd v Colchester BC [1999] Env LR 739. That is to say that it is not normally necessary for the notice to specify the measures which are required to abate the relevant nuisance. However, in Budd it was stated obiter that in certain circumstances it would be wholly unreasonable for the local authority to simply request that a nuisance be abated without also specifying the appropriate steps which were required to be taken on the part of the recipient.
4.5 However, if the means of abatement are required by the local authority then the relevant measures must be specified- R v Falmouth and Truro Port Health Authority ex p South West Water Ltd 24 April 2000. The measures must be specified in both practical terms and also couched in language which is easily understood.-R v Fenny Stratford Justices ex p Watney Mann (Midlands) Ltd [1976] 1 WLR 1101.
4.6 If the abatement notice simply requires the recipient to, 'take steps' to abate the nuisance in question, the requisite steps need not be specified since the notice could be complied with by taking passive action-Sevenoaks DC v Brands Hatch Leisuregroup Ltd (Unreported 5th May 2000). It is suggested that abatement notices should make clear whether the execution of works or other measures is required on the part of the author of the nuisance in order to abate the nuisance. In order to avoid confusion and possible grounds for challenge one should require the person who is responsible for the nuisance simply to abate it or prohibit its recurrence unless there is some good reason why further measures should be specified.
4.7 As far as noise is concerned there is no need for the notice to specify a maximum noise level which would be acceptable-Cambridge City Council v Douglas [2001] Env LR 639. However, if noise levels are specified, the method of ascertaining (or measuring) whether the levels are exceeded must also be specified-R v Fenny. It is legitimate for the notice simply to specify a noise level and then leave it to the recipient of the notice to determine how he should comply with it-R v Crown Court at Canterbury ex p Howson-Ball [2001] Env LR 639.
4.8 When serving an abatement notice for noise nuisance, it is often useful to consider how the recipient might resist such a notice and its requirements. Trying to anticipate any counter arguments that could be used to appeal the notice or as a defence against enforcement can assist those drafting the notice to eliminate those weaknesses or build arguments to counter in the event of appeal or enforcement. In order to do this effectively prior to serving a notice for other than simple noise nuisances, it can often be helpful to contact the person(s) the notice will be served on and advise them of the nuisance and what the outline requirements of the intended abatement notice may be and ask them for the following information.
i) Any comments on the occurrence or recurrence of the noise complained of.
ii) Are there already plans in hand to address the problem? If so, ask for details of those plans and a time scale for implementation.
iii) Do they have any comments on the local authority's outline proposals for abatement and do they have any suggested alternatives which will abate the nuisance and a time scale for the implementation of such alternatives.
4.9 Obviously the service of the abatement notice should not be unreasonably delayed by asking for the above information. Time-limiting the response to your enquiry after which period the abatement notice will be served lets the recipient know this is not an informal pre-service appeal process and that the Local Authority takes the matter seriously. If the person contacted does not respond or responds inadequately to the enquiry, an abatement notice can be served and if challenged by way of appeal or during any enforcement action the Local Authority's position is strengthened by the lack of any such response. If an adequate response is received this can be incorporated into the abatement notice, where appropriate; placing the Local Authority in a strong position should they face an appeal or in the event of any attempted defence against any subsequent enforcement action that might be necessary. Whilst inviting comments in complex cases introduces an initial delay in issuing the notice, this can pay dividends in many cases, speeding the overall abatement process by opening up communication with those responsible for remedying the nuisance on a collaborative basis, with the backup of the abatement notice and its enforcement, if necessary.
4.10 The local authority needs to be careful to avoid giving the impression that it is holding a consultation process about whether to serve an abatement notice. There is no requirement for a council to undertake any form of consultation in respect of statutory nuisance enforcement action. Where it creates a 'legitimate expectation' of consultation, the local authority is required to undertake the process fully and properly. 35
5. SUPPLEMENTARY POWERS - SEEKING INTERDICTS
Interdicts are a civil remedy, granted at the discretion of the court. A local authority may apply to the High Court for an Interdict against the person responsible for the statutory nuisance 36 where it is of the opinion that criminal proceedings under section 80(4) EPA 1990 would afford an inadequate remedy. 37
5.1 Requirements for Seeking an Interdict
Care is needed to ensure that the Interdict is being sought on proper grounds. The inconvenience of the abatement notice procedure would not in itself be sufficient grounds for making an application. Where combined, however, with a reasonable belief that the prospective nuisance offender was likely to ignore the requirements of a notice, then seeking an Interdict would be justified. It would be unreasonable if the authority failed to consider before applying for an Interdict whether the respondents might respond favourably to prosecution for breach of the abatement notice or to the service of a new notice. 38
The local authority must satisfy itself that without the availability of an Interdict the statutory nuisance would continue, be repeated, or would occur in the first place. The likely consequences of the nuisance, were it to occur, should also be serious. Examples of grounds appropriate for an Interdict include:
- urgency, e.g. holding a 'rave' party in the very near future;
- where there has been a deliberate and flagrant flouting of the law, e.g. where previous proceedings have been tried but without effect; 39
- evidence that the nuisance offender intends to carry on with the conduct complained of, come what may. 40
However, there is no requirement that the abatement notice procedure should have been tried and failed before seeking an Interdict, or that there must have already occurred a 'deliberate and flagrant breach of the law. 41 If an abatement notice had already been served but summary action in respect of its breach not proceeded with, the local authority could still seek an Interdict. 42
Where the local authority has imposed conditions in a notice to control noise from construction sites, served under section 60 Control of Pollution Act 1974, it can seek an Interdict where local residents need protection which is not provided by the notice. A deliberate and flagrant breach of the law is not a requirement in these cases. 43
5.2 Procedure
The action is normally initiated in the Outer House of the Court of Session by a summons or occasionally by petition. Access to the Court of Session is very speedy. In a case of sufficient urgency an Interdict can be granted over the telephone. It is more usual for the application to be made before a High Court judge at the start of the day's business.
A sworn statement fully setting out the grounds for the application will be needed. This should include:
- details of the nuisance, including whether it is occurring, recurring, or likely to occur or recur;
- the statutory basis of the nuisance in section 79 EPA 1990;
- the reasons why an Interdict is being sought and why the criminal procedure afforded by section 80 EPA 1990 provides an inadequate remedy; and
- the basis for the decision to seek the injunction, by whom it was made and under what authority.
Granting an Interdict is a discretionary remedy in which the applicant must provide full and frank disclosure of the circumstances of the nuisance, including any factors suggesting that the remedy might not be appropriate. If granted, the Interdict has immediate effect once served on the person responsible for the nuisance. A return date will also be set by the court, since any such application will have a limited duration. This is to provide the respondent with the opportunity to say why the Interdict should not continue or ought not to have been granted in the first place.
5.3 Liability to Give Undertakings in Damages
A local authority is in the same position as central government and is not usually required to give undertakings in damages before an Interdict is granted. The effect of this is that the authority will not have to pay the respondent for losses incurred as a result of the Interdict being granted should it later be overturned or its terms made less onerous. 44
5.4 Penalties
The penalty for contempt of court resulting from breach of an order for Interdict includes a prison sentence of up to two years and/ or an unlimited fine. 45 These penalties are considerably greater than those available for a criminal prosecution under section 80(4) EPA1990. The power to order an unlimited fine normally acts as a disincentive to those commercial offenders who may be minded to make an economic calculation in deciding whether to cause or continue causing a nuisance.
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