Nuisance Regulations in the Uk
Essay Preview: Nuisance Regulations in the Uk
Report this essay
Environmental Health Law Coursework
Nuisance regulations in the UK
Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also “common”) or private. The law of nuisance was created to stop bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (i.e., private nuisance) or with the rights of the general public (i.e., public nuisance) An area of the law of delict is the common law doctrine of nuisance. This doctrine is extremely broad in its application, and protects the right of an owner to “comfortable enjoyment” of his property. Where conduct of a third party disrupts such enjoyment, the law of nuisance will protect the owner if what he is being exposed to is more than what is tolerable taking into account all the circumstances and effect of the offensive conduct. Tolerability is judged from the standpoint of the victim is only expected to take ordinary precautionary measures to protect himself from nuisance.
Noise pollution qualify as a nuisance under both common and statutory law, which have each their own particularities and specifications A statute law means that a law was passed in Parliament: for example, the Scottish Parliament, the Welsh Assembly, the Statutory Instruments, etc. Acts of Parliament are the highest form of law and must be enforced by the courts, as Statute Law is the body of law made under Acts of Parliament and embodies most criminal law and all regulatory law. Statutory law lists the crimes or offences and their corresponding penalties. However Common law is used in the absence of statute: the previous judgments of the courts will be applied by courts in future. This means that judges takes into account the way the outcome of a legal case was decided in the past in order to make a judgement. Common Law originates from the middle age wherein there weren’t many laws made by the State covering a number of issues. The persons habilitated to make legal decisions (whether judges, monarchs, local nobility…) were able to decide about the penalty and the person entitled to justice between people in dispute as they were empowered to do so, and in order to have consistency, they referred to precedent cases and arranged their judgments in accordance with the precedent ones, as they were recorded and consulted. Over time a body of law that was consistent equitable was formed.
The process of determining what level of noise constitutes a nuisance can be quite subjective, the relevant circumstances to which courts will have regard in determining whether a nuisance exists include the following: Type of harm, extent of harm, social utility of the activity from which the harm arises and the social interest is harmed, locality, sensitivity to harm, and difficulty or otherwise of preventing the harm. Under the common law, the nuisance mustn’t be an isolated nuisance but should be continuing. Before the courts intervene they must have ensured that the nuisance is going to be repeated for certain. It must cause a substantial inconvenience and material damage that is more than tolerable, and must be accused by fault or negligence
Taking action in common law has some benefits over the statutory nuisance procedure that is delineated below.
With common law, you can ask the local council to take action against a nuisance: the local authorities will check the premises, attest that there is or isn’t a nuisance according to the criterias of the common law, and ensure that the plaintiff doesn’t suffer from anti-social behaviour under anti-social behaviour act. The local council then decides if there is an action to be taken, and decides on the matter on the behalf of the plaintiff. One of the advantages are that no extensive nor complete knowledge of the law is needed, neither does building an actual case and go through the process of going to court, etc., given that the action will be taken by the local council, and it’s the local authorities that check and make sure the nuisance doesn’t comply with the law. Local authorities often do not act, or, if they do, have their action heavily delayed by opponents engaging in protracted appeals procedures. In order to counter the lack of action and get a better defence, people can take action themselves, under section 82 EPA 1990 using the statutory law instead of the common law There are several acts under the statutory law: The Environmental Protection Act, the Anti-social Behaviour Act and the Civic Government Act. The essential step is to serve a notice on the perpetrator of the alleged nuisance requiring that it be abated within 21 days (3 days in the case of noise nuisance). If the nuisance continues, they then lay a complaint with the local Magistrates Court, which will issue a summons. The magistrates have power to order that the nuisance is abated and to pay compensation. If the nuisance is not abated, this is a criminal offence. For the noise to count as a statutory nuisance it must do one of the following: unreasonably and substantially interfere with the use or enjoyment of a home or other premises or injure health or be likely to injure health The advantage of the procedure is that if the defendant, there is no risk of paying the other sides costs, unlike in civil litigation. (There are exceptions to this rule if there is improper conduct, but the honest, responsible complainant has nothing to fear). If the defendant win, they get their costs paid. The disadvantage is that the opponent may well have what can amount to a defence of “best practical means” available to it, which may limit ones scope for an effective remedy. There are other procedural disadvantages. However, overall, owing to the cost issues, it is probably worth considering making a statutory nuisance claim as a first port of call. If someone win in statutory nuisance, they are still able to sue in the civil courts for compensation (if, and this may be for a number of reasons, the magistrates do not order compensation, or this is only limited). The procedure is supposed to be quick (hence the 3 day notice period for noise nuisance). In practice delays can occur, but if these are prejudicial there is scope for ensuring speed. The environmental protection act 1990 which came into force on the 1st