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

1.0 - INTRODUCTION

1.1 This guidance is provided to assist with application of the new and amended statutory nuisance provisions of the Environmental Protection Act 1990 (the 1990 Act) introduced by the Public Health etc (Scotland) Act 2008 (the 2008 Act). This guidance includes a brief overview of the statutory nuisance regime and detailed procedural and technical guidance on the new provisions relating to statutory nuisance contained in the 2008 Act. It also provides additional guidance on the application of existing powers.

1.2 The provisions of the 2008 Act are very wide ranging and include:-

a) amendment to the law on public health,

b) provisions about mortuaries and the disposal of bodies,

c) provisions to enable the Scottish Ministers to implement their obligations under the International Health Regulations,

d) powers to enable provision to be made in relation to the provision of information to users on the effects on health of sunbeds

e) amendments to the law on statutory nuisances

f) minor and consequential amendments to the sewerage nuisance provisions of the Water Services etc. (Scotland) Act 2005.

1.3 The 2008 Act includes a number of new and amended provisions relating to statutory nuisance as follows:-

a) to include insect nuisance, artificial light pollution and nuisance associated with water in the statutory nuisance regime of the 1990 Act,

b) to introduce a new regulation-making power to amend the statutory nuisance regime in the future,

c) to introduce a new fixed penalty regime for non-compliance with an abatement notice served under section 80 of the 1990 Act,

d) to amend the Water Services etc (Scotland) Act 2005 in relation to sewerage nuisance.

1.4 The provisions relating to statutory nuisance are found in Part III of the 1990 Act and the changes to them are introduced by Part 9 of the 2008 Act. Schedule 2 of the 2008 Act includes some minor and consequential amendments. The relevant sections of the 2008 Act are reproduced in Annex 1 of this guidance.

1.5 To assist in analysis of the changes implemented by the 2008 Act, Annex 2 contains a consolidated version of Part III of the 1990 Act and Annex 3 contains a consolidated version of the Statutory Nuisance (Appeals)(Scotland) Regulations 1996. The versions included in Annexes 2 and 3 are unofficial versions provided to assist in understanding the impact of the changes on the statutory nuisance regime.

1.6 The Scottish Government and previous administrations recognised for some time that the statutory nuisance provisions in the 1990 Act required updating, not least in response to evolving societal and climatic changes.

1.7 In view of other legislation introduced in the interim, including EC Directives, and for example the Antisocial Behaviour etc (Scotland) Act 2004, careful consideration has been given to avoid double regulation.

1.8 The Clean Neighbourhoods and Environment Act 2005 ( CNE Act) introduced new statutory nuisances in England and Wales relating to insect nuisance and artificial light pollution. The 2008 Act presented the opportunity to include these same nuisances into the Scottish regime to bring parity of approach for local authorities across the UK.