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CHAPTER 7: ENVIRONMENTAL HEALTH CONCERNS
INTRODUCTION
7.1 The concept of statutory nuisance has its origins in the 19th century with the desire to control and regulate, for public health purposes, aspects of what we now term the physical environment. Despite being successively re-enacted and updated, a distinction has always been preserved within the definition of statutory nuisance between that which is injurious to health and that which is simply a nuisance. Nuisance itself is also a delict at common law.
7.2 Statutory nuisance legislation has been introduced and developed over time with existing provisions being contained within Part III of the Environmental Protection Act 1990. This legislation is under constant review and most recent developments include the introduction of the Anti-social Behaviour (Scotland) Act 2004
to further enhance powers available to deal with noise nuisance. In paragraphs 7.17 - 7.18 below there is discussion on how the nuisance regime might be further enhanced.
7.3 In addition to the developments in the nuisance legislation, advances in science and technology over time have dramatically improved our understanding of the relationship between environment and human health; have provided capacity to quantify aspects of health concern in the environment; and have permitted the prescription, in many situations, of health relevant standards. This has led to many targeted measures to control agents in specific environmental circumstances. These measures, relating for example to toxins in air or infectious agents in water, are driven by human health concerns and have effectively modified the role of statutory nuisance in public health to one of protecting the public where more hazard-specific legislative remedies are inappropriate. At the same time and as described elsewhere in this chapter, statutory nuisance procedures have continued to be a useful tool for local authorities to deal with other unsatisfactory environmental circumstances in their localities, irrespective of whether they are perceived to be "injurious to health".
7.4 Over time, case law relating to statutory nuisance has provided clarity on the circumstances in which the provisions can be successfully used, emphasising, for example, the need to have regard to the response of a reasonable person without undue sensitivity to the issue under consideration and the relevance of time and location.
CURRENT LEGISLATIVE POSITION
7.5 Although statutory nuisance legislation is now to be found mostly in the Environmental Protection Act 1990, a number of longstanding legal powers addressing nuisance related issues remain in force from the 1897 Public Health (Scotland) Act ( Annex H).
7.6 Major sections on nuisances from the 1897 Act were repealed and updated by environmental protection legislation in the 1990s. However, in defining statutory nuisance, the Environmental Protection Act 1990 ( EPA) preserves the established distinction in its reference to statutory nuisance as having two distinct elements: something which is "prejudicial to health" and something which is "a nuisance". In this context, "prejudicial to health" is defined as "injurious, or likely to cause injury to, health". In the EPA, each of these terms is related to specific circumstances only that might give rise to an offence. These circumstances cover:
- premises
- smoke
- fumes or gases
- dust, steam, smell or other effluvia
- any accumulation or deposit
- animals
- noise
- any other matter, declared by any enactment to be a statutory nuisance.
7.7 Environmental Health Officers in local authorities apply statutory nuisance and other provisions of the 1990 Act as part of a "toolkit" of legislative measures to improve the physical environment. Investigations are frequently prompted by complaints from members of the public but the Environmental Protection Act also places a duty on local authorities to inspect their areas from time to time to "detect" any statutory nuisances and to take such steps as are reasonably practicable to investigate any complaint regarding a nuisance by any person living in the area (Section 79).
ISSUES FOR CONSIDERATION
Whether there is a need to enhance our approach to environmental health concerns
7.8 As explained above, the present legislative position on how much an environmental health concern can be considered a statutory nuisance is limited by statute. It is also restricted by case law which has developed in relation to the statutory provisions. The interpretation of statutory nuisance through successive court judgements has served to refine and clarify our understanding of the term. However, a review of public health legislation provides a good opportunity to consider if it is possible to establish a new approach to how we can more comprehensively protect the public from health damaging aspects of environment where other remedies, laid down in the legislation that we have in place, are inappropriate. Does it remain effective in terms of a developing contemporary understanding of the relationship between environment and human health? Should it have the capacity to address a spectrum of issues within the physical environment that have potential to impact on health through a psychosocial route? Any provision must also be considered in terms of its capacity to address hazards in the environment of a toxic, infectious or allergenic nature which may have health relevance but due, for example, to the concentrations involved or intermittency of exposure, are not readily addressed through hazard specific legislation.
7.9 There are unusual cases where it is not possible to quantify the exposure and give assurances that
the population are not placed at risk. This may happen when toxicology is unable to state with certainty the health implications of intermittent exposure to very high levels of a substance or indeed exposure to trace levels over a protracted period.
7.10 Therefore, given this background, the issue to consider is whether new legislative provisions should be introduced, entirely separate from the Environmental Protection Act 1990, which would more comprehensively fulfil a public health function as a "backstop" in protecting the public from health damaging aspects of environment, where other remedies are inappropriate. Whilst this may introduce further regulatory requirements on local authorities, it would also remove the need for the law to be amended as new environmental concerns are identified.
New provisions within public health legislation
7.11 For reasons of clarity and consistency with European Community law there is a strong case for avoiding the term "nuisance" in creating any new legal concept, which would also require a carefully crafted definition supported by appropriate guidance. A new concept of circumstances leading to what we might call an "environmental health concern" might be captured by new legislative provisions totally separate from
the 1990 Act, with the following wording:
"any exposure pertaining to the physical environment of any premises, which is:
(a) discernable to the unaided senses;
(b) of such a nature, so located; and
(c) having such temporal characteristics as to engender material discomfort or be prejudicial to the psychological or physical health and wellbeing of a person without unusual sensitivity to that particular exposure".
7.12 The reference to "premises" is an essential prerequisite of any definition in this area in order to identify an appropriate recipient for any notice and to make a clear distinction between aspects unrelated to premises, such as, e.g. litter, dog fouling or antisocial behaviour which are more appropriately addressed under other statutory provisions.
7.13 Sufficient non-statutory guidance should be developed to assist in the use of the "environmental health concern" definition and procedures to remove, in the majority of circumstances, the need for medical input in the application of the powers.
7.14 Reports of environmental health concern should normally originate from members of the public. Statutory obligations for assessment and public consultation should rest with the organisations that currently have statutory public health duties and the main focus of control should remain with local authorities. This would also be in keeping with the definition of environmental health concern as primarily a social problem
7.15 Once an "environmental health concern" has been recognised and reported by a member of the public to the enforcement authority, the scale of the exposure should be assessed in relation to the precautionary principle and to ensure proportionate action supported by adequate legal sanctions.
7.16 This new concept of "environmental health concern" nested within new public health legislation, and separate from the 1990 Act, offers the opportunity for more streamlined approaches to enforcement such as those now applied in the enforcement of food hygiene standards, e.g. prohibition orders. Such a procedure would allow swift action by EHOs but would necessitate a report to a sheriff within three days. Such actions might of themselves generate publicity that would be helpful in alerting the public to the need to report such issues and the processes by which these are managed.
Enhancement of nuisance legislation
7.17 Although the above proposals are not intended to lead to any amendments to the Environmental Protection Act 1990, additional types of specific nuisances have emerged over recent years which are not at present covered in those laid out in the 1990 Act. For example it is not possible to make and pursue statutory nuisance complaints on light pollution nor on insect infestation under the 1990 Act. The introduction of more security lighting and poor management of some industrial concerns has made such complaints on light and insect pollution respectively more likely. In introducing these new statutory nuisances, we would also be mirroring what was recently put in place in England and Wales through the Clean Neighbourhoods Act 2005.
7.18 Light and insect pollution are referred to and those two areas seem most appropriate for legislative action. There may be others, for example controlling urban seagulls, which are becoming an increasing problem.
Question 5
Environmental Health Concerns and Nuisance
Views are invited on:
5.1 whether it is perceived that there is a gap in legislation to deal with threats from the environment
5.2 if so, what are your views on introducing provisions on "environmental health concern" in new public health legislation: these provisions would be totally separate from the Environmental Protection Act 1990
5.3 should any of the components of the Public Health (Scotland) Act 1897 outlined in Annex H be retained or amended
5.4 whether the definition of an "environmental health concern" could be:
"any exposure pertaining to the physical environment of any premises, which is:
(a) discernable to the unaided senses;
(b) of such a nature, so located; and
(c) having such temporal characteristics as to engender material discomfort or be prejudicial to the psychological or physical health and wellbeing of a person without unusual sensitivity to that particular exposure"
If you consider that there is a better term than public health 'concern' which covers the issues described, then please let us know
5.5 whether the new system of environmental health concern management could include:
a) public (individual or group) report to the local authority
b) joint assessment by local authority and NHS public health staff of the risk, based on the precautionary principle and agree actions with the community
c) proportionate action by local authority, based on adequate legal sanctions, including abatement or prohibition orders similar to those used currently, or in food standards legislation
5.6 whether the time is also right to expand the statutory nuisance regime in the Environmental Protection Act 1990 to include light and insect pollution; and are there any other areas of nuisance that should be added now.
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