Statutory Nuisances and the Environmental Protection Act 1990
There has been a spike in recent months of statutory nuisance notices being served on landlords pursuant to the Environmental Protection Act 1990 (“the EPA 1990”). There may be a few reasons for this, but a potential cause could be the (now delayed) introduction of fixed recoverable costs which are set to come in in the next couple of years.
Finding yourself in receipt of a statutory nuisance notice or even summons is unfamiliar territory for many within the Housing sector and with their apparent resurgence, we are here to answer a few questions you may such as:
What is a Statutory Nuisance?
A statutory nuisance will generally fall within two categories: damp and mould or pests (such as mice, rats and bed bugs) (s79(1)(a) EPA). We will refer to mice as an example throughout for ease.
The mere presence of mice would not be enough to satisfy the Court that a statutory nuisance exists, the key here is whether the alleged presence of mice is injurious or likely to cause injury to health.
A statutory nuisance notice can served by a ‘person aggrieved’ (s82 EPA). This means that anyone can bring these cases as an action, whether or not they are the tenant (as in disrepair claims).
The notice should be brought against the personal responsible (s79(7) EPA) such as the landlord or owner of the property for their default and a defect in the structure of the property, such as holes in the wall which allow mice to enter.
Once a statutory notice is served, the personal responsible will have at least twenty-one days to get rid of the alleged nuisance.
If the issue persists, then the person aggrieved can then lay the information with the Magistrates’ Court. Although these cases are criminal matters and they can seem intimidating, there is a higher burden of proof which is ‘beyond all reasonable doubt’ and it’s on the person aggrieved to make their case and prove it. This is a much higher threshold compared to civil cases.
What Happens Next?
If the information is laid and the matter is defended, a first directions hearing will take place. You will agree directions such as disclosure and witness statements all the way up to trial.
At the trial the Court has two issues to consider. The first is whether a statutory nuisance existed on the date the information was laid, and whether it continues to exist on the date of the trial. The second point is whether the Defendant is the person responsible for the statutory nuisance.
There are several defences available to you at each stage of the process, briefly, these are:
- That you have done all that can be reasonably done upon receipt of the statutory notice. You have inspected the property, ascertained whether there are mice there and brought in pest control to carry out a programme of works.
- You can potentially argue that the information was laid too early, and the summons is possibly defective.
- At the stage of giving evidence, any expert report needs to comply with the Criminal Procedure Rules. The expert instructed needs to be qualified to comment on whether the alleged statutory nuisance is prejudicial to health. Note that experts in disrepair cases are not normally qualified to do this.
- Finally, at the trial, you can argue that the person aggrieved has not been able to prove that a statutory nuisance existed or exists at the property beyond all reasonable doubt or that you are the person responsible. Factors such as failure to provide access to carry out works, and unreasonable refusal of alternative accommodation will be considered.
What Happens if your defence does not work??
If it is found that there was a statutory nuisance at the date that the information was laid, but that it no longer exists at the date of trial, and that you were the person responsible, then the only issue is whether you are liable for costs (s82(12) of the EPA).
If, however, it is found that both a statutory nuisance existed or exists at the date the information was laid and at the date of trial and that you are the person responsible, then the Judge will make an order for abatement, order a fine of up to £5,000 and costs for the person aggrieved. As this is a criminal case you will also have a criminal record.
If the abatement order is breached, then it is at this stage that an offence is committed. The only defence available would be “reasonable excuse”, where you must show that you have done all that is reasonably expected of you to comply with the order.
- As soon as you receive a statutory notice, get into the property, carry out an inspection and undertake the works. If you can’t get access, keep trying.
- Try to abate the nuisance within the twenty-one days.
- Evidence keeping is key – document everything, letters, inspection reports, any communications had and refusal to provide access.
- Make sure you instruct someone qualified to comment on whether the alleged statutory nuisance is prejudicial to health, such as an Environmental Health Officer.
If you have any questions or would like further information, please contact Narin Masera.