Nuisance provisions of the Public Health etc (Scotland) Act 2008: guidance

ANNEX 2 - ENVIRONMENTAL PROTECTION ACT 1990 PART III
UNOFFICIAL CONSOLIDATED VERSION

Environmental Protection Act 1990 Part III

Statutory Nuisances and Clean Air

(Unofficial Consolidated Version - please read in conjunction with the
Environmental Protection Act 1990 and the Public Health etc. (Scotland) act 2008)

This version relates to Scotland only

79. Statutory nuisances and inspections therefor.

(1) Subject to subsections (1ZA) to (6A) below, the following matters constitute "statutory nuisances" for the purposes of this Part, that is to say-

(a) any premises in such a state as to be prejudicial to health or a nuisance;

(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;

(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;

(d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;

(e) any accumulation or deposit which is prejudicial to health or a nuisance;

(ea) any water covering land or land covered with water which is in such a state as to be prejudicial to health or a nuisance;

(f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;

(faa) any insects emanating from premises and being prejudicial to health or a nuisance:

(fba) artificial light emitted from-

(i) premises;

(ii) any stationary object,

so as to be prejudicial to health or a nuisance;

(g) noise emitted from premises so as to be prejudicial to health or a nuisance;

(ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street or in Scotland, road;

(h) any other matter declared by any enactment to be a statutory nuisance;

and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below or sections 80 and 80A below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.

(1ZA)The Scottish Ministers may by regulations-

(a) amend this section so as to-

(i) prescribe additional matters which constitute statutory nuisances for the purposes of this Part;

(ii) vary the description of any matter which constitutes a statutory nuisance;

(b) in relation to an amendment under paragraph (a), amend this Act and any other enactment to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Scottish Ministers consider appropriate.

(1ZB) Before making regulations under subsection (1ZA) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (1ZC) below.

(1ZC) Those persons are-

(a) such associations of local authorities; and

(b) such other persons,

as the Scottish Ministers consider appropriate.

(1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state.

(1B) Land is in a "contaminated state" for the purposes of sub section (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that-

(a) significant harm is being caused or there is a significant possibility of such harm being caused; or

(b) significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused;

and in this subsection "harm", "pollution" in relation to the water environment, "substance" and "the water environment" have the same meanings as in Part IIA of this Act.

(2) Subsection (1)(b), (fba) and (g) above do not apply in relation to premises (or, in respect of paragraph (fba)(ii) above, a stationary object located on premises)-

(a) occupied on behalf of the Crown for naval, military or air force purposes or for the purposes of the department of the Secretary of State having responsibility for defence, or

(b) occupied by or for the purposes of a visiting force;

and "visiting force" means any such body, contingent or detachment of the forces of any country as is visiting force for the purposes of any of the provisions of the Visiting Forces Act 1952.

(3) Subsection (1)(b) above does not apply to-

(i) smoke emitted from a chimney of a private dwelling within a smoke control area,

(ii) dark smoke emitted from a chimney of a building or a chimney serving the furnace of a boiler or industrial plant attached to a building or for the time being fixed to or installed on any land,

(iii) smoke emitted from a railway locomotive steam engine, or

(iv) dark smoke emitted otherwise than as mentioned above from industrial or trade premises.

(4) Subsection (1)(c) above does not apply in relation to premises other than private dwellings.

(5) Subsection (1)(d) above does not apply to steam emitted from a railway locomotive engine.

(5ZA) For the purposes of subsection (1)(ea) above, "land"-

(a) includes structures (other than buildings) in, on or over land;

(b) does not include-

(i) mains or other pipes used for carrying a water supply;

(ii) any part of the public sewerage system;

(iii) any other sewers, drains or other pipes used for carrying sewage;

(iv) the foreshore, that is to say, the land between the high and low water marks of ordinary spring tides;

(v) the seabed.

(5ZB) In subsection (5ZA) above-

"drain", "sewage" and "sewer" have the meanings given by section 59 of the Sewerage (Scotland) Act 1968 (c.47);

"main" has the meaning given by section 109(1) of the Water (Scotland) Act 1980 (c.45);

"pipe" includes a service pipe within the meaning of that section of that Act;

"public sewerage system" has the meaning given by section 29 of the Water Services etc. (Scotland) Act 2005 (asp 3).

(5AA) Subsection (1)(faa) above does not apply to insects that are wild animals included in Schedule 5 to the Wildlife and Countryside Act 1981 (c.69).

(5AB) For the purposes of subsection (1)(faa) above, "premises" does not include-

(a) a site of special scientific interest (within the meaning of section 3(6) of the Nature Conservation (Scotland) Act 2004 (asp 6));

(b) such other place (or type of place) as may be prescribed in regulations made by the Scottish Ministers.

(5AC) Before making regulations under subsection (5AB)(b) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (5AD) below.

(5AD) Those persons are-

(a) such associations of local authorities; and

(b) such other persons,

as the Scottish Ministers consider appropriate.

(5BA) Subsection (1)(fba) above does not apply to artificial light emitted from a lighthouse (within the meaning of Part 8 of the Merchant Shipping Act 1995 (c.21)).

(6) Subsection (1)(g) above does not apply to noise caused by aircraft other than model aircraft.

(6A) Subsection (1)(ga) above does not apply to noise made-

(a) by traffic,

(b) by any naval, military or air force of the Crown or by a visiting force (as defined in subsection (2) above), or

(c) by a political demonstration or a demonstration supporting or opposing a cause or campaign.

(7) In this Part-

"chimney" includes structures and openings of any kind from or through which smoke may be emitted;

"dust" does not include dust emitted from a chimney as an ingredient of smoke;

"equipment" includes a musical instrument;

"fumes" means any airborne solid matter smaller than dust;

"gas" includes vapour and moisture precipitated from vapour;

"industrial, trade or business premises" means premises used for any industrial, trade or business purposes or premises not so used on which matter is burnt in connection with any industrial, trade or business process, and premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purposes of manufacturing;

"local authority" means, -

(a) in Greater London, a London borough council, the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;

(b) in England and Wales outside Greater London, a district council;

(bb) in Wales, a county council or county borough council;

(c) the Council of the Isles of Scilly; and

(d) in Scotland, a district or islands council or a council constituted under section 2 of the Local Government etc (Scotland) Act 1994;

"noise" includes vibration;

person responsible"-

(a) in relation to a statutory nuisance, means the person to whose act, default or sufferance the nuisance is attributable;

(b) in relation to a vehicle, includes the person in whose name the vehicle is for the time being registered under the Vehicle Excise and Registration Act 1994 and any other person who is for the time being the driver of the vehicle;

(c) in relation to machinery or equipment, includes any person who is for the time being the operator of the machinery or equipment;

"prejudicial to health" means injurious, or likely to cause injury, to health;

"premises" includes land (subject to subsection (5AB) above) and, subject to subsection (12) and, in relation to England and Wales, section 81A(9) below, any vessel;

"private dwelling" means any building, or part of a building, used or intended to be used, as a dwelling;

"road" has the same meaning as in Part IV of the New Roads and Street Works Act 1991;

"smoke" includes soot, ash, grit and gritty particles emitted in smoke;

"street" means a highway and any other road, footway, square or court that is for the time being open to the public;

and any expressions used in this section and in the Clean Air Act 1993 have the same meaning in this section as in that Act and section 3 of the Clean Air Act 1993 shall apply for the interpretation of the expression "dark smoke" and the operation of this Part in relation to it.

(8) Where, by an order under section 2 of the Public Health (Control of Disease) Act 1984, a port health authority has been constituted for any port health district, the port health authority, shall have by virtue of this subsection, as respects its district, the functions conferred or imposed by this Part in relation to statutory nuisances other than a nuisance falling within paragraph (g) or (ga) of subsection (1) above and no such order shall be made assigning those functions; and "local authority" and "area" shall be construed accordingly.

(9) In this Part "best practicable means" is to be interpreted by reference to the following provisions-

(a) "practicable" means reasonably practicable having regard among other things to local conditions and circumstances, to the current state of technical knowledge and to the financial implications;

(b) the means to be employed include the design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structures;

(c) the test is to apply only so far as compatible with any duty imposed by law;

(d) the test is to apply only so far as compatible with safety and safe working conditions, and with the exigencies of any emergency or unforeseeable circumstances;

and, in circumstances where a code of practice under section 71 of the Control of Pollution Act 1974 (noise minimisation) is applicable, regard shall also be had to guidance given in it.

(10) A local authority shall not without the consent of the Secretary of State institute summary proceedings under this Part in respect of a nuisance falling within paragraph (b), (d), (e) or (g) and, in relation to Scotland, paragraph (ga), of subsection (1) above if proceedings in respect thereof might be instituted under Part I under regulations under section 2 of the Pollution Prevention and Control Act 1999 of the Alkali &c. Works Regulation Act 1906 or section 5 of the Health and Safety at Work etc. Act 1974.

(11) The area of a local authority which includes part of the seashore shall also include for the purposes of this Part the territorial sea lying seawards from that part of the shore; and subject to subsection (12) and, in relation to England and Wales, section 81A(9) below, this Part shall have effect, in relation to any area included in the area of a local authority by virtue of this subsection-

(a) as if references to premises and the occupier of premises included respectively a vessel and the master of a vessel; and

(b) with such other modifications, if any, as are prescribed in regulations made by the Secretary of State.

(12) A vessel powered by steam reciprocating machinery is not a vessel to which this Part of this Act applies.

80. Summary proceedings for statutory nuisances.

(1) Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice ( "an abatement notice") imposing all or any of the following requirements-

(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;

(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes,

and the notice shall specify the time or times within which the requirements of the notice are to be complied with.

(2) Subject to section 80A(1) below, the abatement notice shall be served-

(a) except in a case falling within paragraph (b) or (c) below, on the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, on the owner of the premises;

(c) where the person responsible for the nuisance cannot be found or the nuisance has not yet occurred, on the owner or occupier of the premises.

(3) A person served with an abatement notice may appeal against the notice to a magistrates' court or in Scotland, the sheriff within the period of twenty-one days beginning with the date on which he was served with the notice.

(4) If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence.

(4A) Where a local authority have reason to believe that a person has committed an offence under subsection (4) above, the local authority may give that person a notice (a "fixed penalty notice") in accordance with section 80ZA offering the person the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.

(5) Except in a case falling within subsection (6) below, a person who commits an offence under subsection (4) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one-tenth of that level for each day on which the offence continues after the conviction.

(6) A person who commits an offence under subsection (4) above on industrial, trade or business premises shall be liable on summary conviction to a fine not exceeding £40,000.

(7) Subject to subsection (8) below, in any proceedings for an offence under subsection (4) above in respect of a statutory nuisance it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance.

(8) The defence under subsection (7) above is not available-

(a) in the case of a nuisance falling within paragraph (a), (d), (e), (f) or (g) of section 79(1) above except where the nuisance arises on industrial, trade or business premises;

(aa) in the case of a nuisance falling within paragraph (ga) of section 79(1) above except where the noise is emitted from or caused by a vehicle, machinery or equipment being used for industrial, trade or business purposes;

(b) in the case of a nuisance falling within paragraph (b) of section 79(1) above except where the smoke is emitted from a chimney; and

(c) in the case of a nuisance falling within paragraph (c) or (h) of section 79(1) above.

(9) In proceedings for an offence under subsection (4) above in respect of a statutory nuisance falling within paragraph (g) or (ga) of section 79(1) above where the offence consists in contravening requirements imposed by virtue of subsection (1)(a) above it shall be a defence to prove-

(a) that the alleged offence was covered by a notice served under section 60 or a consent given under section 61 or 65 of the Control of Pollution Act 1974 (construction sites, etc); or

(b) where the alleged offence was committed at a time when the premises were subject to a notice under section 66 of that Act (noise reduction notice), that the level of noise emitted from the premises at that time was not such as to a constitute a contravention of the notice under that section; or

(c) where the alleged offence was committed at a time when the premises were not subject to a notice under section 66 of that Act, and when a level fixed under section 67 of that Act (new buildings liable to abatement order) applied to the premises, that the level of noise emitted from the premises at that time did not exceed that level.

(10) Paragraphs (b) and (c) of subsection (9) above apply whether or not the relevant notice was subject to appeal at the time when the offence was alleged to have been committed.

80ZA Fixed penalty notice: supplemental

(1) This section applies to a fixed penalty notice given under section 80(4A).

(2) A fixed penalty notice must give reasonable particulars of the circumstances alleged to constitute the offence.

(3) A fixed penalty notice must also state-

(a) the amount of the fixed penalty;

(b) the period within which it may be paid;

(c) the-

(i) person to whom; and

(ii) address at which,

payment may be made;

(d) the method or methods by which payment may be made;

(e) the consequences of not making a payment within the period for payment.

(4) The amount of the fixed penalty under section 80(4A) is-

(a) in the case of a nuisance relating to industrial, trade or business premises, £400;

(b) in any other case, £150.

(5) The period for payment of the fixed penalty is 14 days beginning with the day after the day on which the notice is given.

(6) The local authority may extend the period for paying the fixed penalty in any particular case if they consider it appropriate to do so by sending notice to the person to whom the fixed penalty notice was given.

(7) No proceedings for an offence under section 80(4) may be commenced before the end of the period for payment of the fixed penalty.

(8) In proceedings for an offence under section 80(4), a certificate which-

(a) purports to be signed by or on behalf of a person having responsibility for the financial affairs of the local authority; and

(b) states that payment of the amount specified in the fixed penalty notice was or was not received by the expiry of the period within which that fixed penalty may be paid,

is sufficient evidence of the facts stated.

(9) Where proceedings for an offence in respect of which a fixed penalty notice has been given are commenced, the notice is to be treated as withdrawn.

(10) Any sum received by a local authority under section 80(4A) accrues to that authority.

(11) The Scottish Ministers may, by regulations-

(a) provide that fixed penalty notices may not be given in such circumstances as may be prescribed;

(b) provide for the form of a fixed penalty notice;

(c) provide for the method or methods by which fixed penalties may be paid;

(d) modify subsection (4)(a) or (b) above so as to substitute a different amount (not exceeding level 2 on the standard scale) for the amount for the time being specified there;

(e) provide for the amount of the fixed penalty to be different in different cases or descriptions of case;

(f) modify subsection (5) above so as to substitute a different period for the period for the time being specified there;

(g) provide for the keeping of accounts, and the preparation and publication of statements of account relating to fixed penalties under section 80(4A).

(12) Before making regulations under subsection (11) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (13) below.

(13) Those persons are-

(a) such associations of local authorities; and

(b) such other persons,

as the Scottish Ministers consider appropriate.

80A. Abatement notice in respect of noise in street.

(1) In the case of a statutory nuisance within section 79(1)(ga) above that-

(a) has not yet occurred, or

(b) arises from noise emitted from or caused by an unattended vehicle or unattended machinery or equipment,

the abatement notice shall be served in accordance with subsection (2) below.

(2) The notice shall be served-

(a) where the person responsible for the vehicle, machinery or equipment can be found, on that person;

(b) where that person cannot be found or where the local authority determines that this paragraph should apply, by fixing the notice to the vehicle, machinery or equipment.

(3) Where-

(a) an abatement notice is served in accordance with subsection (2)(b) above by virtue of a determination of the local authority, and

(b) the person responsible for the vehicle, machinery or equipment can be found and served with a copy of the notice within an hour of the notice being fixed to the vehicle, machinery or equipment,

a copy of the notice shall be served on that person accordingly.

(4) Where an abatement notice is served in accordance with subsection (2)(b) above by virtue of a determination of the local authority, the notice shall state that, if a copy of the notice is subsequently served under subsection (3) above, the time specified in the notice as the time within which its requirements are to be complied with is extended by such further period as is specified in the notice.

(5) Where an abatement notice is served in accordance with subsection (2)(b) above, the person responsible for the vehicle, machinery or equipment may appeal against the notice under section 80(3) above as if he had been served with the notice on the date on which it was fixed to the vehicle, machinery or equipment.

(6) Section 80(4) above shall apply in relation to a person on whom a copy of an abatement notice is served under subsection (3) above as if the copy were the notice itself.

(7) A person who removes or interferes with a notice fixed to a vehicle, machinery or equipment in accordance with subsection (2)(b) above shall be guilty of an offence, unless he is the person responsible for the vehicle, machinery or equipment or he does so with the authority of that person.

(8) A person who commits an offence under subsection (7) above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

81. Supplementary provisions.

(1) Subject to subsection (1A) below, where more than one person is responsible for a statutory nuisance section 80 above shall apply to each of those persons whether or not what any one of them is responsible for would by itself amount to a nuisance.

(1A) In relation to a statutory nuisance within section 79(1)(ga) above for which more than one person is responsible (whether or not what any one of those persons is responsible for would by itself amount to such a nuisance), section 80(2)(a) above shall apply with the substitution of "any one of the persons" for "the person".

(1B) In relation to a statutory nuisance within section 79(1)(ga) above caused by noise emitted from or caused by an unattended vehicle or unattended machinery or equipment for which more than one person is responsible, section 80A above shall apply with the substitution-

(a) in subsection (2)(a), of "any of the persons" for "the person" and of "one such person" for "that person",

(b) in subsection (2)(b), of "such a person" for "that person",

(c) in subsection (3), of "any of the persons" for "the person" and of "one such person" for "that person",

(d) in subsection (5), of "any person" for "the person", and

(e) in subsection (7), of "a person" for "the person" and of "such a person" for "that person".

(2) Where a statutory nuisance which exists or has occurred within the area of a local authority, or which has affected any part of that area, appears to the local authority to be wholly or partly caused by some act or default committed or taking place outside the area, the local authority may act under section 80 above as if the act or default were wholly within that area, except that any appeal shall be heard by a magistrates' court or in Scotland, the sheriff having jurisdiction where the act or default is alleged to have taken place.

(3) Where an abatement notice has not been complied with, the local authority may, whether or not-

(a) proceedings have been taken for an offence under section 80(4); or

(b) a fixed penalty notice has been given under section 80(4A) in respect of that offence (regardless of whether the fixed penalty notice is accepted),

abate the nuisance and do whatever may be necessary in execution of the abatement notice.

(3A) The power under subsection (3) above shall, where the matter to be abated is a statutory nuisance by virtue of section 79(1)(g) above, include power to seize and remove any equipment which it appears to the authority is being or has been used in the emission of the noise in question.

(3B) A person who wilfully obstructs any person exercising, by virtue of subsection (3A) above, the power conferred by subsection (3) above shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(3C) Schedule 1 to the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) shall have effect in relation to equipment seized by virtue of subsection (3A) above as it does in relation to equipment seized under section 47(2) of that Act, subject to the following modifications-

(a) in paragraph 1(a), "noise offence" means an offence under section 80(4) above in respect of a statutory nuisance falling within section 79(1)(g) above; and

(b) in paragraph 1(b), "seized equipment" means equipment seized by virtue of subsection (3A) above.

(4) Any expenses reasonably incurred by a local authority in abating, or preventing the recurrence of, a statutory nuisance under subsection (3) above may be recovered by them from the person by whose act or default the nuisance was caused and, if that person is the owner of the premises, from any person who is for the time being the owner thereof; and the court or sheriff may apportion the expenses between persons by whose acts or defaults the nuisance is caused in such manner as the court consider or sheriff considers fair and reasonable.

(5) If a local authority is of opinion that proceedings for an offence under section 80(4) above would afford an inadequate remedy in the case of any statutory nuisance, they may, subject to subsection (6) below, take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction, for the purpose of securing the abatement, prohibition or restriction of the nuisance, and the proceedings shall be maintainable notwithstanding the local authority have suffered no damage from the nuisance.

(6) In any proceedings under subsection (5) above in respect of a nuisance falling within paragraph (g) or (ga]of section 79(1) above, it shall be a defence to prove that the noise was authorised by a notice under section 60 or a consent under section 61 (construction sites) of the Control of Pollution Act 1974.

(7) The further supplementary provisions in Schedule 3 to this Act shall have effect.

82. Summary proceedings by persons aggrieved by statutory nuisances.

(1) A magistrates' court may act under this section on a complaint or, in Scotland, the sheriff may act under this section on a summary application, made by any person on the ground that he is aggrieved by the existence of a statutory nuisance.

(2) If the magistrates' court or, in Scotland, the sheriff is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises or, in the case of a nuisance within section 79(1)(ga) above, in the same street or, in Scotland, road, the court or the sheriff shall make an order for either or both of the following purposes-

(a) requiring the defendant or, in Scotland, defender to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;

(b) prohibiting a recurrence of the nuisance, and requiring the defendant or defender, within a time specified in the order, to execute any works necessary to prevent the recurrence;

and, in England and Wales, may also impose on the defendant a fine not exceeding level 5 on the standard scale.

(3) If the magistrates' court or the sheriff is satisfied that the alleged nuisance exists and is such as, in the opinion of the court or of the sheriff, to render premises unfit for human habitation, an order under subsection (2) above may prohibit the use of the premises for human habitation until the premises are, to the satisfaction of the court or of the sheriff, rendered fit for that purpose.

(4) Proceedings for an order under subsection (2) above shall be brought-

(a) except in a case falling within paragraph (b), (c) or (d) below, against the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, against the owner of the premises;

(c) where the person responsible for the nuisance cannot be found, against the owner or occupier of the premises.

(d) in the case of a statutory nuisance within section 79(1)(ga) above caused by noise emitted from or caused by an unattended vehicle or unattended machinery or equipment, against the person responsible for the vehicle, machinery or equipment.

(5) Subject to subsection (5A) below, where more than one person is responsible for a statutory nuisance, subsections (1) to (4) above shall apply to each of those persons whether or not what any one of them is responsible for would by itself amount to a nuisance.

(5A) In relation to a statutory nuisance within section 79(1)(ga) above for which more than one person is responsible (whether or not what any one of those persons is responsible for would by itself amount to such a nuisance), subsection (4)(a) above shall apply with the substitution of "each person responsible for the nuisance who can be found" for "the person responsible for the nuisance".

(5B) In relation to a statutory nuisance within section 79(1)(ga) above caused by noise emitted from or caused by an unattended vehicle or unattended machinery or equipment for which more than one person is responsible, subsection (4)(d) above shall apply with the substitution of "any person" for "the person".

(6) Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of.

(7) The notice of the bringing of proceedings in respect of a statutory nuisance required by subsection (6) above which is applicable is-

(a) in the case of a nuisance falling within paragraph (g) or (ga) of section 79(1) above, not less than three days' notice; and

(b) in the case of a nuisance of any other description, not less than twenty-one days' notice;

but the Scottish Ministers may, by order, provide that this subsection shall have effect as if such period as is specified in the order were the minimum period of notice applicable to any description of statutory nuisance specified in the order.

(8) A person who, without reasonable excuse, contravenes any requirement or prohibition imposed by an order under subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one-tenth of that level for each day on which the offence continues after the conviction.

(9) Subject to subsection (10) below, in any proceedings for an offence under subsection (8) above in respect of a statutory nuisance it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance.

(10) The defence under subsection (9) above is not available-

(a) in the case of a nuisance falling within paragraph (a), (d), (e), (f), or (g) of section 79(1) above except where the nuisance arises on industrial, trade or business premises;

(aa) in the case of a nuisance falling within paragraph (ga) of section 79(1) above except where the noise is emitted from or caused by a vehicle, machinery or equipment being used for industrial, trade or business purposes;

(b) in the case of a nuisance falling within paragraph (b) of section 79(1) above except where the smoke is emitted from a chimney;

(c) in the case of a nuisance falling within paragraph (c) or (h) of section 79(1) above; and

(d) in the case of a nuisance which is such as to render the premises unfit for human habitation.

(11) If a person is convicted of an offence under subsection (8) above, a magistrates' court or the sheriff may, after giving the local authority in whose area the nuisance has occurred an opportunity of being heard, direct the authority to do anything which the person convicted was required to do by the order to which the conviction relates.

(12) Where on the hearing of proceedings for an order under subsection (2) above it is proved that the alleged nuisance existed at the date of the making of the complaint or summary application, then, whether or not at the date of the hearing it still exists or is likely to recur, the court or the sheriff shall order the defendant or defender (or defendants or defenders in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court or the sheriff considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.

(13) If it appears to the magistrates' court or to the sheriff that neither the person responsible for the nuisance nor the owner or occupier of the premises or (as the case may be) the person responsible for the vehicle, machinery or equipment can be found the court or the sheriff may, after giving the local authority in whose area the nuisance has occurred an opportunity of being heard, direct the authority to do anything which the court or the sheriff would have ordered that person to do.

Statutory nuisances: Scotland

83. Repealed

Termination of existing controls over offensive trades and businesses

84. Termination of Public Health Act controls over offensive trades etc.

(1) Where a person carries on, in the area or part of the area of any local authority-

(a) in England or Wales, a trade which-

(i) is an offensive trade within the meaning of section 107 of the ^M17 Public Health Act 1936 in that area or part of that area, and

(ii) constitutes a prescribed process designated for local control for the carrying on of which an authorisation is required under section 6 of this Act; or

(b) in Scotland, a business which-

(i) is mentioned in section 32(1) of the Public Health (Scotland) Act 1897 (or is an offensive business by virtue of that section) in that area or part of that area; and

(ii) constitutes a prescribed process designated for local control for the carrying on of which an authorisation is required under the said section 6,

subsection (2) below shall have effect in relation to that trade or business as from the date on which an authorisation is granted under section 6 of this Act or, if that person has not applied for such an authorisation within the period allowed under section 2(1) above for making applications under that section, as from the end of that period.

(2) Where this subsection applies in relation to the trade or business carried on by any person-

(a) nothing in section 107 of the Public Health Act 1936 or in section 32 of the Public Health (Scotland) Act 1897 shall apply in relation to it, and

(b) no byelaws or further byelaws made under section 108(2) of the said Act of 1936, or under subsection (2) of the said section 32, with respect to a trade or business of that description shall apply in relation to it;

but without prejudice to the continuance of, and imposition of any penalty in, any proceedings under the said section 107 or the said section 32 which were instituted before the date as from which this subsection has effect in relation to the trade or business.

(3) Subsection (2)(b) above shall apply in relation to the trade of fish frying as it applies in relation to an offensive trade.

(4) When the Scottish Ministers considers it expedient to do so, having regard to the operation of Part I and the preceding provisions of this Part of this Act in relation to offensive trades or businesses, he may by order repeal-

(a) sections 107 and 108 of the Public Health Act 1936; and

(b) section 32 of the Public Health (Scotland) Act 1897;

and different days may be so appointed in relation to trades or businesses which constitute prescribed processes and those which do not.

(5) In this section-

"prescribed process" has the same meaning as in Part I of this Act; and

"offensive trade" or "trade" has the same meaning as in section 107 of the Public Health Act 1936.

Application to gases of certain Clean Air Act provisions

85. Repealed

ENVIRONMENTAL PROTECTION ACT 1990
SCHEDULE 3 - STATUTORY NUISANCES: SUPPLEMENTARY PROVISIONS
(UNOFFICIAL CONSOLIDATED VERSION FOR INFORMATION ONLY)

Appeals to magistrates' court

1. - (1) This paragraph applies in relation to appeals under section 80(3) against an abatement notice to a magistrates' court.

(2) An appeal to which this paragraph applies shall be by way of complaint for an order and the Magistrates' Courts Act 1980 shall apply to the proceedings.

(3) An appeal against any decision of a magistrates' court in pursuance of an appeal to which this paragraph applies shall lie to the Crown Court at the instance of any party to the proceedings in which the decision was given.

(4) The Secretary of State may make regulations as to appeals to which this paragraph applies and the regulations may in particular-

(a) include provisions comparable to those in section 290 of the Public Health Act 1936 (appeals against notices requiring the execution of works);

(b) prescribe the cases in which an abatement notice is , or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings;

(c) prescribe the cases in which the decision on appeal may in some respects be less favourable to the appellant than the decision from which he is appealing;

(d) prescribe the cases in which the appellant may claim that an abatement notice should have been served on some other person and prescribe the procedure to be followed in those cases.

1A. Appeals to Sheriff

(1) This paragraph applies in relation to appeals to the sheriff under section 80(3) against an abatement notice.

(2) An appeal to which this paragraph applies shall be by way of a summary application.

(3) The Scottish Ministers may make regulations as to appeals to which this paragraph applies and the regulations may in particular include or prescribe any of the matters referred to in sub-paragraphs (4)(a) to (d) of paragraph 1 above.

Powers of entry etc

2. - (1) Subject to sub-paragraph (2) below, any person authorised by a local authority may, on production (if so required) of his authority, enter any premises at any reasonable time-

(a) for the purpose of ascertaining whether or not a statutory nuisance exists; or

(b) for the purpose of taking any action, or executing any work, authorised or required by Part III.

(2) Admission by virtue of sub-paragraph (1) above to any premises used wholly or mainly for residential purposes shall not except in an emergency be demanded as of right unless twenty-four hours notice of the intended entry has been given to the occupier.

(3) If it is shown to the satisfaction of a justice of the peace on sworn information in writing-

(a) that admission to any premises has been refused, or that refusal is apprehended, or that the premises are unoccupied or the occupier is temporarily absent, or that the case is one of emergency, or that an application for admission would defeat the object of the entry; and

(b) that there is reasonable ground for entry into the premises for the purpose for which entry is required,

the justice may by warrant under his hand authorise the local authority by any authorised person to enter the premises, if need be by force.

(4) An authorised person entering any premises by virtue of sub-paragraph (1) or a warrant under sub-paragraph (3) above may-

(a) take with him such other persons and such equipment as may be necessary;

(b) carry out such inspections, measurements and tests as he considers necessary for the discharge of any of the local authority's functions under Part III; and

(c) take away such samples or articles as he considers necessary for that purpose.

(5) On leaving any unoccupied premises which he has entered by virtue of sub-paragraph (1) above or a warrant under sub-paragraph (3) above the authorised person shall leave them as effectually secured against trespassers as he found them.

(6) A warrant issued in pursuance of sub-paragraph (3) above shall continue in force until the purpose for which the entry is required has been satisfied.

(7) Any reference in this paragraph to an emergency is a reference to a case where the person requiring entry has reasonable cause to believe that circumstances exist which are likely to endanger life or health and that immediate entry is necessary to verify the existence of those circumstances or to ascertain their cause and to effect a remedy.

(8) In the application of this paragraph to Scotland, a reference to a justice of the peace or to a justice includes a reference to the sheriff.

2A. - (1) Any person authorised by a local authority may on production (if so required) of his authority-

(a) enter or open a vehicle, machinery or equipment, if necessary by force, or

(b) remove a vehicle, machinery or equipment from a street or, in Scotland, road to a secure place,

for the purpose of taking any action, or executing any work, authorised by or required under Part III in relation to a statutory nuisance within section 79(1)(ga) above caused by noise emitted from or caused by the vehicle, machinery or equipment.

(2) On leaving any unattended vehicle, machinery or equipment that he has entered or opened under sub-paragraph (1) above, the authorised person shall (subject to sub-paragraph (3) below) leave it secured against interference or theft in such manner and as effectually as he found it.

(3) If the authorised person is unable to comply with sub-paragraph (2) above, he shall for the purpose of securing the unattended vehicle, machinery or equipment either-

(a) immobilise it by such means as he considers expedient, or

(b) remove it from the street to a secure place.

(4) In carrying out any function under sub-paragraph (1), (2) or (3) above, the authorised person shall not cause more damage than is necessary.

(5) Before a vehicle, machinery or equipment is entered, opened or removed under sub-paragraph (1) above, the local authority shall notify the police of the intention to take action under that sub-paragraph.

(6) After a vehicle, machinery or equipment has been removed under sub-paragraph (1) or (3) above, the local authority shall notify the police of its removal and current location.

(7) Notification under sub-paragraph (5) or (6) above may be given to the police at any police station in the local authority's area or, in the case of the Temples, at any police station of the City of London Police.

(8) For the purposes of section 81(4) above, any expenses reasonably incurred by a local authority under sub-paragraph (2) or (3) above shall be treated as incurred by the authority under section 81(3) above in abating or preventing the recurrence of the statutory nuisance in question.]

Offences relating to entry

3. - (1) A person who wilfully obstructs any person acting in the exercise of any powers conferred by paragraph 2 or 2A above shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(2) If a person discloses any information relating to any trade secret obtained in the exercise of any powers conferred by paragraph 2 above he shall, unless the disclosure was made in the performance of his duty or with the consent of the person having the right to disclose the information, be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

Default powers

4. -This paragraph does not apply to Scotland.

Protection from personal liability

5. Nothing done by, or by a member of, a local authority or by any officer of or other person authorised by a local authority shall, if done in good faith for the purpose of executing Part III, subject them or any of them personally to any action, liability, claim or demand whatsoever (other than any liability under section 17 or 18 of the Audit Commission Act 1998 (powers of district auditor and court)).

Statement of right of appeal in notices

6. Where an appeal against a notice served by a local authority lies to a magistrates' court or, in Scotland, the sheriff by virtue of section 80, it shall be the duty of the authority to include in such a notice a statement indicating that such an appeal lies as aforesaid and specifying the time within which it must be brought.