Private action

Complaining directly to the Magistrates

Some types of nuisance occur only occasionally, and if it is not possible for the Local Authority to witness it, they may not feel able to take any action on behalf of an individual who has lodged the complaint. If, for whatever reason, Eden District Council cannot establish a Statutory Nuisance, or you do not wish to involve them, you can take independent action by complaining direct to the Magistrates' Court under Section 82 of the Environmental Protection Act 1990.

Advice

You may wish to consult a solicitor who is familiar with the Courts and Court procedure. They should also be able to advise you on your chances of success in proving your case. This is not an absolute requirement however, and you can proceed yourself.

How to proceed in taking your own action

• Try to resolve the problem informally before contacting the court by writing to the person responsible for the nuisance. Inform them about the subject of your complaint and that you intend to seek legal advice if the nuisance continues. Ensure the letter is dated and keep a copy. If you know where the nuisance is coming from but do not know what or who is causing it, then you should contact the owner or occupier of the premises.
• Keep a detailed written record of dates and times and duration of the offending nuisance, as well as a description of the distress it causes you. Diary sheets can be used for this purpose. It is important not to exaggerate any effect or times. Remember it must be an unreasonable interference with the enjoyment of your property. 
• Any records you keep should be simple and clear, and should be written as soon as possible after the incident while your memory is fresh; you may have to present them, on oath, in Court.
• If you decide to take formal action, you must write to the person responsible for the nuisance giving them at least 3 days notice (for noise), or 21 days notice (for other nuisances), of your intention to proceed to the Magistrates Court. Your letter must clearly state what it is you are complaining about. Please refer to the example Notice of Intention to Bring Proceedings (PDF: 51Kb / 2 pages)

Magistrates court procedure

• Contact the Clerk to the Justice and explain that you wish to make a complaint under Section 82, The Environmental Protection Act 1990.
• Arrange to visit the Court when asked to do so by the clerk and show the Magistrate your evidence. If they decide you have an arguable case, a summons will be served on the person responsible for the nuisance, giving the date and the time of the Court hearing.
• You must then attend the Court at the hearing together with any witnesses you may have. You can either employ a Solicitor or present the case yourself. If you choose the second option the clerk of the Court will give you advice and guidance.
• The Magistrate will listen to evidence from yourself and the defendant and decide if a nuisance is proven. They will make any appropriate Orders and penalties or dismiss the case. Whatever decision is reached, they may apportion costs incurred in bringing the case, for example: Solicitors fees, as it sees fit.

The outcome

If the court decides in your favour it will make an order requiring the offender to abate the nuisance and specify the measures they will have to take to achieve this. The order may also prohibit or restrict a recurrence of the nuisance. The court may also impose a fine at the same time as making the order. If the court finds that the nuisance existed at the date of making the complaint, they will award you the reasonable costs incurred in bringing the action against the nuisance maker. These costs will be awarded whether or not the nuisance still exists or an abatement order is made. If an order is made, the court will generally require the nuisance maker to pay your costs. If the case is dismissed, you will normally incur your own costs in bringing the case to court and you may incur the costs of the other party.

You will need to be prepared for the possibility of having to pay the costs of taking the case to court. These costs will include your costs, those of your solicitor if you have one, and any witnesses you may call in support of your case.

Final remarks

Before starting Court proceedings, you should try every alternative means of settling the dispute. If you go to Court and lose the case, you may have to pay not only your own costs, but those of the other side.

If at some future time, the nuisance recurs, you are welcome to make a fresh complaint, but should bear in mind that if you are an owner-occupier you may have to disclose that you have complained of nuisance when you come to sell your property.