The definition of statutory nuisance

Definitions of statutory nuisance include:

• '...any premises in such a state as to be prejudicial to health or a nuisance'

• 'smoke, fumes, gases, smell, effluvia or noise emitted from premises so as to be prejudicial to health or a nuisance'

• any animal kept in such a place or manner as to be prejudicial to health or a nuisance

• any accumulation or deposit that is prejudicial to health or a nuisance.

The definition of 'premises' in the Environmental Protection Act 1990 includes all land [1] and therefore covers both private and public sector housing. The courts in England have held that the Act focuses on the condition of the premises rather than the way they are used. [2] These cases can be used to provide an indication of the approach that may be taken by the Scottish courts.

Where there is a block of flats, the premises in terms of section 79 of the Act may be an individual flat or flats. There is no reason why block repairs should not covered by the Act. An English case found that it was possible to allege a statutory nuisance in relation to the entire block where the tenants' complaint is about the condition of the common parts, or where the problem is related to the entire block. [3]

A site without any permanent buildings may also be premises for the purpose of section 79 of the Act. The Act can therefore be used to eliminate statutory nuisances on caravan sites and other land used for residential purposes.

The premises as a whole have to be prejudicial to health or a nuisance in order for a statutory nuisance to occur. This can be from a single major item of disrepair or a number of minor items. Although the disrepair is to the premises, it is the effect of the defect that is the nuisance rather than the disrepair itself.

A nuisance can be from outside the premises, for example where the noise from local traffic penetrates the property due to poor sound insulation. [4] However, where the noise comes from a neighbour's house and is normal domestic noise, the lack of sound insulation may not be a nuisance at law. [5]

Section 79(7) of the Environmental Protection Act 1990 defines 'prejudicial to health' as meaning '...injurious, or likely to cause injury to health.' There are not many Scottish cases that help to clarify the definition of statutory nuisance. However there have been a number of English cases that do aid clarification, and these can be used with care to provide guidance.

Health is not defined in the EPA 1990, but should be interpreted to include both physical and mental health. This would include the effects of the stress of living in poor housing conditions. In order for action to be taken under the EPA 1990, expert evidence will need to be obtained of the effects of the housing conditions. This could be from a GP, hospital consultant, or Environmental Health Officer (EHO). However, expert evidence will not be conclusive on the issue of nuisance, it is merely one piece of evidence to be considered with all the other surrounding circumstances. [6]

Dampness, condensation or mould growth are all examples of defects in premises that may be prejudicial to health. However interference with comfort or decoration, for example stained wallpaper, is unlikely to qualify as a statutory nuisance.

It is not enough to state that a particular defect exists. The condition must be shown to be either prejudicial to health or amount to a nuisance. In one case a house had both defective windows and gutters but there was no evidence of prejudice to the health of the occupants and therefore no nuisance. [7]

Nuisance is not defined in the Act but has been given its ordinary common law meaning by the courts. [8] Nuisance has a different meaning in England and Scotland. In Scotland a nuisance occurs when there is a more than tolerable interference with the tenant's comfort. [9]

A nuisance does not have to be prejudicial to health. It will usually be enough that the problem makes the enjoyment of the property, and life, so uncomfortable for the occupants or occupiers of adjoining property that it is intolerable. Thus, offensive smells, noise and dirt may fall within this category, whereas defective windows and gutters may not. [10]