Taking Your Own Action

Section 82 of the Environmental Protection Act 1990 (the Act) makes provision for private individuals to take their own action in the Magistrates' Court if they are aggrieved by the existence of a statutory nuisance. The Court can issue an Order requiring the abatement of the nuisance and can also issue a fine. Breach of such an Order is a criminal offence punishable by a further fine.

If you are being disturbed by noise and have been unable to resolve the problem through formal routes such as the Council or partner agencies for example North Surrey Mediation Services then you may want to consider taking your own action for noise nuisance.

How do I know when the noise reaches the point that I could take my own action?

The Act specifically states aggrieved by a statutory nuisance.

What is a statutory nuisance?

A simple definition of a statutory nuisance is "a legal term which has been developed over many years and has come to mean something which is stopping you from enjoying your land or property".

In the case of noise, it would need to be substantial and adversely affect the enjoyment of your home or garden and your response to the noise must be wholly reasonable and not someone who is unduly sensitive. A noise nuisance can occur at any time of the day or night and can be intermittent or continuous.

How do I take my own action?

Step 1 - Preparing your case

• Make sure you know the exact source of the noise nuisance - it might not always be obvious especially if you live in flats or converted dwellings.
  
  It is essential that you obtain and record the full name and address of the person creating the noise nuisance. Copies of the Electoral Register are available in public libraries as well as at the Civic Centre. Alternatively you could obtain this information from the |Land Registry website in the 'Find a Property' section on the main menu bar (note: fee payable).
  
  
• Keep a precise record of your approach. When and how often you have spoken/written to the person responsible for the noise asking them to stop disturbing you. Remember to keep copies of all correspondence.
  
  A Magistrates' Court is unlikely to be very sympathetic unless you can show that you have attempted to deal with the matter in a friendly non-aggressive manner face-to-face before presenting your complaint to the Court.
  
  
• Keep a record of when the noise occurs and its effect on you and/or your family. It is really important to describe the noise, estimate its level i.e. louder than the TV and its effect on you. You can use our |nuisance record sheet if that helps.
  
  Without spying on neighbours you could record the noise level from your home/garden using a digital camera, mobile phone or video camera.
  
  
• You may not be the only person who is affected by the noise. Speak to your neighbours and find out if they are disturbed too. They may be willing to provide a |witness statement and attend Court in support of your case. An independent witness will improve your case.
  
  
• Once you are satisfied that you have put together your case, the law requires that before you begin Court proceedings you must notify the person causing the nuisance of your intention to take them to Court and specifying what you are complaining about and you will need to keep a copy of your letter of notification to show the Court. You must give a minimum of three days notice in your letter before proceeding to Court - |a sample notification letter is available.

If the noise nuisance continues unabated, the next stage is to contact your local Magistrates' Court, to request a hearing date for your case.

Before proceeding to Court it may be desirable, but by no means essential, to discuss the matter with a solicitor or a representative from your local |Citizens Advice Bureau.

Step 2 - Approaching the Magistrates' Court

The Magistrates' Court for the Borough of Elmbridge is:

• At the Magistrates' Court, you will need to explain to the person in the court office that you want to issue a summons under the provisions of the Environmental Protection Act 1990 Section 82.
  
  
• You may be required to to go before the Magistrates in Court to for you application to be considered. Remember to state that you are seeking a summons under Section 82, of the Environmental Protection Act 1990. Be clear and concise in giving evidence, this is your chance to convey to the Magistrates the full impact of the noise nuisance. Evidence such as diary sheets should be made available at this point.
  
  
• If your application is approved a Court officer will issue a summons against the person responsible for the noise and will give you a date and time for the Court hearing.
  
  
• At this stage of the procedure, it might be worth reconsidering whether you want the assistance of a solicitor, who can represent you at the hearing. If you are unsuccessful in proving your case, the Court may ask you to pay the defendants costs. You can, however, decide to conduct the case yourself, and people do.

Step 3 - The Court Hearing

On the date of the hearing there are three possible outcomes:

• the defendant fails to appear;
• the defendant appears and pleads guilty; or
• the defendant appears and pleads not guilty.

1. Failure to appear. If this is the first time the matter has gone before the Court, it will probably be adjourned (postponed) to a future date and the Defendant will be sent notification of this hearing. However, if the Defendant fails to attend a second time, you can ask the Court if they will hear the matter in their absence.
   
   
2. A guilty plea. You will most likely only need to give a brief outline of the general circumstances of the case, as the defendant's guilty plea means they are accepting the facts of the case. The Court will then make an order requiring the abatement of the nuisance or prohibiting its occurrence/recurrence.
   
   
3. Not guilty plea. If the defendant pleads 'not guilty' then you will have to prove your case giving evidence under oath and calling any or all of your witnesses. The defendant can question you and your witnesses. They may also call witnesses of their own. If the defendant gives evidence or calls any witnesses, you will also be able to question them, on the facts relating to the noise case. If the Court substantiates your claim it will make an order requiring the abatement of the nuisance or prohibiting its occurrence/recurrence.

The Court may also fine the person responsible for the noise. The maximum fine being £5,000 if the source is residential, increasing to a maximum of £20,000 for commercial premises.

If the defendant fails to comply with the order issued by the Court requiring them to abate the nuisance or preventing its occurrence/re-occurrence, then they will be committing an offence. Gather evidence of any breaches of the order and let the Courts know.

Conclusion

Taking your own action may seem daunting at first, particularly the thought of taking someone to Court, but it does allow you to take charge of the situation if other avenues have failed.

It may be that once the person responsible for the noise realises that you are intent on taking the matter to Court they may think twice about causing you further noise nuisance.

Further help and advice is available from:

• |Environmental Health & Licensing
• |Citizens Advice Bureau
• A Solicitor - there is a facility to find a solicitor on the website of |The Law Society of England and Wales in the 'Find a Solicitor' section on the main menu bar.

Action under Civil Law

Civil Law can also be used to control any nuisance which has affected you. This involves hiring a solicitor who will start the process of obtaining an injunction in the County Court. This can be quicker and more effective but can be an expensive process.