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

4.0 - REASONS FOR NEW STATUTORY NUISANCE PROVISIONS AND PUBLIC HEALTH BILL CONSULTATION RESPONSES

4.1 The original consultation on the proposed Public Health Bill outlined a number of provisions related to statutory nuisance.

4.2 The relevant statutory nuisance provisions in the Act were intended to:

• Introduce insect nuisance, artificial light nuisance and nuisance associated with water as statutory nuisances in line with legislation in England and Wales;
• Introduce a regulation-making power to allow where necessary amendment of the statutory nuisance regime in the future;
• Introduce a new fixed penalty regime for non-compliance with an abatement notice served under section 80 of the 1990 Act;
• Amend the Water Services etc. (Scotland) Act 2005 in relation to sewerage nuisance to clarify the inter-relationship with the statutory nuisance regime.

4.3 Insects - The inclusion of insect nuisance is partially linked to changing climatic conditions, resulting in higher levels of risk at places like waste water treatment works. It is intended that Scottish Ministers will utilise the powers within the Water Services etc (Scotland) Act 2005 to produce new codes for insect control and odour control within pumping stations and will augment the existing Code for odour control from waste water treatment works.

4.4 Light - Artificial light from premises or a stationary object is included and almost all premises are caught (with the exception of lighthouses and certain Crown defence and military premises) but there is also a universal defence of best practicable means ensuring the test of reasonableness is considered. These provisions are not aimed at dealing with night-glow but primarily nuisance caused to persons in their home from intrusive artificial light.

4.5 Water - The addition of water as a medium for nuisance stems from provisions in the Public Health Act 1936 not being extended to Scotland. Nuisances will now include water that is deemed foul, stagnant or poses a risk to health due to the presence of bacteria or other material in the water. The provisions will complement the arrangements for dealing with chemical pollution enforced by the Scottish Environment Protection Agency.

4.6 Regulation-making powers have been introduced essentially to 'future-proof' the legislation as nuisance is an evolving area especially in relation to societal and climate change. There has been delay in updating the current statutory nuisance regime because of the lack of suitable primary legislation within which to make the necessary amendments and this regulation-making power should allow a more effective mechanism for future updating.

4.7 Fixed penalty scheme - this was introduced to allow an alternate method of enforcement for local authorities to avoid potentially lengthy and costly cases in court. The level of fine has been set (£150 for domestic premises and £400 for commercial premises) based upon the assumption that this procedure is most likely to be used for low level nuisance offences, where there is no significant risk to health. They are not set so high as to have offenders prefer the alternative option of prosecution. The key is offering an expedient route to resolution. It is intended that the availability of fixed penalties will assist in ensuring compliance with abatement notices, and will provide an effective deterrent to non-compliance. There are provisions to allow the level of fine to be varied in the future if required.

4.8 Water Services etc (Scotland) Act 2005 amendment - this is a technical amendment to clarify the inter-relationship between statutory nuisance and sewerage nuisance.

Consultation Responses

4.9 The responses to the public consultation were favourable in regards to updating and enhancing the Statutory Nuisance provisions stated. There were also proposals from agencies such as the Society of Chief Environmental Health Officers ( SCEHO) and the Royal Environmental Health Institute of Scotland ( REHIS) to move the Statutory Nuisance provisions entirely from the 1990 Act into the 2008 Act, as their officers are mainly concerned with protecting public health as opposed to the environment. The two responsibilities are inextricably linked as impacts to the environment will have a logical impact on human beings, but the proposal was rejected not least for practical scope reasons, but as Part III of 1990 Act deals with the regulation and enforcement of environmental matters which are prejudicial to health OR a nuisance and so go beyond public health alone.

4.10 Responses to the consultation did confirm that there were gaps in the statutory nuisance regime of the 1990 Act that needed to be plugged so that threats to public health from the environment could be more effectively managed at local level. There were a number of specific comments on matters that should be considered as statutory nuisance. These were reviewed and the actions taken are outlined below.

4.11 Feral birds - comments were received suggesting that birds should be included as a statutory nuisance. There is provision in existing legislation for the control of birds both under the nuisance provisions in the 1990 Act and the Wildlife and Countryside Act 1981. Further guidance is included in section 10.0.

4.12 Overgrown gardens and high hedges - comments were received suggesting that overgrown gardens and high hedges should be included as statutory nuisances. There is currently no legislation in place in Scotland specifically governing the height of hedges and trees. However section 179 of the Town and Country Planning (Scotland) Act 1997 (that makes provision for land affecting the amenity of a neighbourhood) may be appropriate for overgrown gardens. Also where a Housing Renewal Area exists under section 2 of the Housing (Scotland) Act 2006, a local authority can issue a Maintenance Order under section 42 or a Works Order under section 30 requiring works to a garden by virtue of the wide definition of 'house' in the Act. Controls were implemented in England and Wales through the Antisocial Behaviour Act 2003. It gives local authorities power to deal with complaints where high hedges are having an adverse effect on a neighbour's enjoyment of his domestic property. The procedure only applies after the complainant has attempted to resolve the matter informally with their neighbour. The complainant must submit a fee to the local authority for the service. The main complaints with hedges generally are:

• Reduction in light;
• Blocking views;
• Damage to drains and nearby structures.

4.13 The issue is being considered as part of the current review of the Antisocial Behaviour legislation in Scotland. The final policy position will be agreed by Ministers in due course and this guidance will be amended to reflect the position.

4.14 Domestic Odour - there was some comment that the nuisance regime should be extended to include odour from domestic premises. It is considered that there are already sufficient powers under the existing statutory nuisance regime to deal with the cause of most domestic odours (waste materials, animal excrement etc). The odour provisions of the regime only apply to commercial and industrial sites for this reason. The only likely odour source from domestic premises that is less clear is cooking odour - it may be possible to take action for premises in such as state under the existing regime where the odour is due to a building defect or under the fumes and gases provisions (see 3.15).

4.15 Overflow discharge - it is considered that there are already sufficient powers under the existing statutory nuisance regime to deal with this where premises are in such a state as to be prejudicial to health or a nuisance.

4.16 Nuisance due to deficiencies in sound insulation between properties - noise is already covered in the nuisance regime and domestic noise is also dealt with under the Antisocial Behaviour etc (Scotland) Act 2004. However current case law suggests that the inadequacy of noise insulation between properties cannot be regarded as a statutory nuisance where the property was built or converted in accordance with the building standards at the time. However, action may be appropriate where the insulation provided has significantly deteriorated or been altered or where wholly unreasonable behaviour is causing a nuisance. There has been significant research in the UK on this issue. No further provision has been made at this time but there are proposals to amend building control legislation.

4.17 Traffic noise - there was a suggestion that the regime should be extended to include 'traffic' in section 79 and that the noise in roads provision in section 79(1)(ga) should be extended to 'land'. The nuisance system is not appropriate to regulate traffic noise. There are other controls exercised through the planning regime and also the EC Environmental Noise Directive that more appropriately regulate and control noise from traffic. Section 79(1)(ga) specifically covers noise emitted from or caused by a vehicle, machinery or equipment in a road. This section allows action to be taken against the owner of, or person in control of the vehicle or machinery. However section 79(1)(g) already covers noise from premises (which includes land) and this would adequately cover noise from a vehicle, machinery or equipment on land other than a road.