Environmental health staff are the recognised experts, and their professional judgement is very important - if they consider that a statutory nuisance is being caused, a Magistrate will normally accept their view. However, they may consider that a nuisance is not being caused. The noise may still upset you badly, and they may be very sympathetic to the effect the noise is having on you personally, but they may not be able to say in all honesty that the odour would really represent a nuisance to the average person.

 

Some types of odour occur only occasionally, and if it is not possible for the Local Authority to witness it, they may not feel able to take any action on behalf of an individual who has lodged the complaint. Should this be the situation in your case, then you can take independent action by complaining direct to the Magistrates Court under Section 82 of the Environmental Protection Act 1990. To do this is quite simple, and it need not cost much; it is not necessary to employ a solicitor, as the Clerk to the Court has a responsibility to guide you through the process, whilst in Court.

 

 

Where, for whatever reason, the Local Authority has decided not to proceed formally, or where you do not wish to involve your Local Authority, you can, if you are aggrieved by the existence of a nuisance, complain direct to the Magistrates Court under Section 82 of the Environmental Protection Act 1990. The Magistrates will need to be persuaded that the issue about which you are complaining amounts to a statutory nuisance.

 

Please do not exaggerate any effect or times, but try to stick to the facts. Remember it must be an unreasonable interference with the enjoyment of your property.

 

It is important to have as much evidence to support your allegation of nuisance as possible. The record should be accurate, stating the date, the time when the problem started and finished, and describe how it affected you (e.g. you were unable to have your windows open).

 

If you subsequently decide to take action under Section 82 of the Environmental Protection Act 1990, you must give at least twenty-one days for all other matters in writing to the perpetrator that you intend to do this. The notice should provide details of the complaint and the Act provides that it is sufficient for it to be delivered to the perpetrator by hand or normal post. Make sure that the letter is dated and keep a copy. It is likely to strengthen your case if you can show that you have acted in a reasonable manner and have given the person responsible for the problem the chance to rectify the situation before resorting to legal measures.

 

If there is still no improvement, the next step is to contact the Clerk of the Court. Tell them you wish to make a complaint under Section 82 of the Environmental Protection Act 1990. They will probably make an appointment for you to go and see them when they will explain the procedure and will ask you to produce evidence as described above to show the Magistrates that you have an arguable case. You should also let them know if the Environmental Health Department of your Local Authority has been consulted. A summons will be issued and served on the person responsible for the problem, stating the date and time arranged for the Court hearing. They will probably come to Court to defend themselves, and may even make counter-accusations.

 

You do not need to have a solicitor to represent you at the hearing, although you may do so if you wish. Legal Aid is not normally available towards the cost of proceedings in the Magistrates Court, although legal advice prior to proceedings may be available under the Green Form Scheme, depending on your financial circumstances.

 

If you present your own case, the Clerk of the Court will give you advice and guidance, or you can contact your local Citizens Advice Bureau which may be able to offer assistance.