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

2.0 - OVERVIEW OF EXISTING STATUTORY NUISANCE REGIME

2.1 There are two ways of addressing a problem of nuisance in Scotland: either through the common law (i.e. law made by the Courts in successive judgements) or, if applicable, through the statutory provisions in the 1990 Act. (i.e. laws passed by Parliament). Nuisance generally entails some form of damage to, or intolerable interference with a person's use or enjoyment of property. There is consequently any number of situations that a court may consider to be a nuisance under common law. Under the 1990 Act however, only certain matters may constitute a statutory nuisance. The various matters that may constitute a statutory nuisance are set down in section 79 of the 1990 Act. In each case, the matter must either be a nuisance in its own right or be prejudicial to health in order to be a statutory nuisance.

2.2 Part III of the 1990 Act contains the main provisions on statutory nuisance. It enables local authorities and individuals to take action to secure the abatement of a statutory nuisance. Local authorities have a duty to inspect their areas to detect whether a nuisance exists or is likely to occur or recur. An authority must also take such steps as are reasonably practicable to investigate any complaint of statutory nuisance from a person living in its area. Where the local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an abatement notice on the person responsible. The notice should impose all or any of the following requirements:

a. the abatement of the nuisance or prohibition or restriction of its occurrence or reoccurrence;

b. the carrying out of such works and other steps necessary for the any of those purposes.

2.3 The person on whom the notice is served may appeal to the sheriff within 21 days of date on which he is served with the notice. The detail of the appeal procedure is included in Schedule 3 of the 1990 Act and the regulations made under the Schedule: the Statutory Nuisance (Appeals)(Scotland) Regulations 1996.

2.4 Failure to comply with the terms of an abatement notice without reasonable excuse may result in prosecution in the Sheriff Court. On summary conviction a person may be liable to a fine not exceeding level five on the standard scale (presently £5000) plus an additional daily fine of an amount equal to one tenth of that level (i.e. £500) for each day on which the offence continues after conviction. Where the conviction is for an offence on industrial, trade or business premises, the maximum fine on summary conviction is £40,000.

2.5 It is a defence against liability for the failure to comply with (or contravention of) an abatement notice to prove that the best practicable means were used to prevent or counteract the effects of the nuisance. However this defence is not available in the case of certain nuisances and these are listed in section 80 of the 1990 Act.

2.6 If an abatement notice is not complied with, the local authority may take the necessary steps to abate the nuisance itself (including in the case of noise nuisance, seizure of the equipment causing the noise) and may recover the costs that were reasonably incurred in doing this from the responsible person.

2.7 The 1990 Act also makes provision for any person aggrieved by the existence of a statutory nuisance to make an application to the Sheriff who, if satisfied a nuisance exists, shall make an order requiring the abatement of the nuisance and/or the prevention of it's occurrence or recurrence.

2.8 Statistics provided by the Royal Environmental Health Institute for Scotland ( REHIS) for nuisance demonstrate that only a tiny percentage of complaints result in successful prosecutions (for 44,940 complaints in 2006 there were 1,500 notices served and 65 prosecutions secured). The Antisocial Behaviour Noise Scheme statistics show a similar trend with 38,524 complaints in 2007 resulting in 2,645 warning notices but a higher number of fixed penalty notices (187). These figures suggest that the fixed penalty notice route may make enforcement and abatement of nuisances more effective, if only through providing an additional deterrent.

2.9 The nuisance statistics quoted do not illustrate however what proportion of complaints were not established as a statutory nuisance, resolved by informal intervention or through compliance with abatement notices.