Environmental Protection Act claims – how to avoid prosecution

In recent years, there has been a significant increase in tenants claiming that the condition of their home constitutes a statutory nuisance as defined by the Environmental Protection Act 1990 (EPA).

Landlords who are used to managing disrepair claims commonly fall into the trap of treating EPA claims in the same way. This can often prove fatal and result in a landlord walking straight into a prosecution and associated liability for costs.

To help avoid this situation arising, follow this advice:

Check the contents of the EPA pre-action notice, its purpose and timescales

The most common and fundamental error landlords make is to assume an EPA pre-action notice should be treated in the same way as a letter of claim served under the Pre Action Protocol for Housing Disrepair Cases (the Protocol).

When a tenant sends such a letter of claim, the landlord has 20 working days to carry out an inspection, provide a response to the allegations, disclose documents and, if necessary, make proposals for settlement and/or to agree a single joint expert.

In contrast, an EPA notice must specify the nuisance complained of and give the landlord 21 days’ notice to abate it before the start of any proceedings for prosecution. Note this is calendar not working days.

Carry out the necessary works within 21 days

There is no provision within the EPA to seek to resolve issues to avoid proceedings and, if the tenant’s objectives in serving the EPA notice are to be compensated for the nuisance and/or to recoup legal costs, it would not be in their interest to delay. It you receive an EPA notice, it is therefore imperative to carry out the necessary works to abate the statutory nuisance within the 21 day period.

If prompt action is taken and the nuisance is abated within 21 days, the tenant would have no remedy in the Magistrates Court as a statutory nuisance must exist at the date the complaint is made to the Court. This means that the resident couldn’t claim for compensation or payment of legal costs if the nuisance is abated within the 21 day period of the notice, although it is important to note that, in many cases, the defects/conditions that give rise to a nuisance claim could also form the basis of a separate disrepair claim.

Consider the ‘person responsible’

The tenant must prove beyond reasonable doubt that the landlord is the ‘person responsible’ for the statutory nuisance. As a result, a tenant can’t engineer non- compliance by obstructing access as failure to do so is likely to give the landlord a complete defence.

If the nuisance continues to exist because of the tenant’s actions, the landlord’s defence would be that the tenant is the “person responsible” for the nuisance.

Do whatever is necessary before proceedings are issued

In EPA claims it is always in the landlord’s best interest to abate the statutory nuisance before proceedings are issued, not only to avoid potential costs and compensation, but also a possible fine, order for works and the potential reputational damage these cases can attract.

To find out more or for assistance managing EPA claims, please contact Donna McCarthy, Partner in the Housing Management Team on 0207 880 4349 or email donna.mccarthy@devonshires.co.uk

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