Duty of local authorities

Every local authority is under a duty to ensure that its area is inspected to detect any statutory nuisance that exists.

This content applies to Scotland

Statutory nuisance

Every local authority has a duty 'to take such steps as are reasonably practicable to investigate complaints' of a statutory nuisance made by a person living in the area. [1] The task of detecting statutory nuisances is usually delegated to environmental health officers who are often made aware of statutory nuisances by tenants' complaints.

In these circumstances the local authority has rights of entry to inspect property that may be in such a state as to be a statutory nuisance. It can obtain warrants to allow entry if access is refused.

Where a local authority is satisfied that a statutory nuisance exists or is likely to arise or recur, it is legally bound to take action using the powers contained in the Environmental Protection Act 1990 Act. [2] Although obliged to follow the statutory procedures to tackle statutory nuisances, some authorities will first serve an informal notice that action will be enforced using the 1990 Act if works are not carried out.

Abatement notices

The usual enforcement procedure starts with service of an abatement notice. [3] An abatement notice must be served where a local authority is satisfied that a statutory nuisance exists, is likely to occur, even where it does not at present and has not occurred previously, and/or has existed and is likely to recur even if it does not exist at present.

The notice must be served on the person responsible for the nuisance. However if the nuisance is of a structural nature then it must be served on the owner of the building. If the person responsible for the nuisance cannot be found then the notice can be served on the owner or occupier of the premises. Where more than one person is responsible for the statutory nuisance notice may be served on each person whether or not her/his behaviour alone would amount to a nuisance. [4]

The notice will require the responsible person/s to carry out any works and take any steps necessary to abate the nuisance. A time limit for compliance with the notice has to be given.

(It should be noted that a local authority cannot serve a notice on itself, so if the alleged statutory nuisance is in a local authority property, the tenant or other person affected by the statutory nuisance would use alternative procedures. For further information, please see the section on action by tenants and other occupiers).

Appeals

A right of appeal is available to a person served with an abatement notice. [5] The appeal must be brought in the sheriff court within 21 days of the notice being served. There are various grounds for appeal and any appeal may be based on at least one of the specified grounds. These include defective and unjustified notices. [6]

The statutory appeals procedure must be used. Judicial review could only be used if no appeal was possible and the local authority has acted unlawfully in serving the notice.

Failure to comply with abatement notice

Where the person served with the abatement notice has not complied with or appealed against the requirements of the notice and does not have reasonable excuse, then s/he is guilty of an offence. [7]

Lack of compliance can lead to a fine not exceeding level 5 on the standard scale (currently £5,000). [8] If the statutory nuisance is committed on industrial, trade or business premises the fine is a figure not exceeding £40,000. [9] The notice remains in force until it has been complied with.

Where the notice has not been complied with, the local authority can effect compliance itself by abating the nuisance and doing whatever may be necessary in execution of the notice. Any expenses reasonably incurred by the local authority in carrying out this work may be recovered from the person by whose actions caused the default or nuisance. [10] The court may apportion any such expenses, as it considers fair and reasonable.

Last updated: 29 December 2014

Footnotes

  • [1]

    s.79(1) Environmental Protection Act 1990

  • [2]

    s.80(1) Environmental Protection Act 1990

  • [3]

    s.80 Environmental Protection Act 1990

  • [4]

    s.81(1) Environmental Protection Act 1990

  • [5]

    s.80(3) Environmental Protection Act 1990

  • [6]

    Statutory Nuisance (Appeals) (Scotland) Regulations 1996 SI 1996/1076

  • [7]

    s.80(4) Environmental Protection Act 1990

  • [8]

    s.80(5) Environmental Protection Act 1990

  • [9]

    s.80(6) Environmental Protection Act 1990, amended by Sch.2 Part 1 para.4(4) Antisocial Behaviour etc. (Scotland) Act 2004

  • [10]

    s.81(4) Environmental Protection Act 1990