Taking Your Own Legal Action
Once we complete an investigation we will make a decision whether the noise you are subject to amounts to a statutory nuisance.
If the officer concerned decides that the noise does not fulfil this criteria you will be advised that Sandwell Council will not be progressing your complaint.
In such circumstances the officer will direct you to take you own discretionary action. If you find yourself in this situation and you believe that you still have a problem that requires a legal solution then the alternative is to make a complaint direct to the Magistrates Court under section 82 of the Environmental Protection Act 1990:
Making an application
To make a successful application you will need to persuade the court that your problem amounts to a statutory nuisance.
Therefore a good application will require you to keep legible, accurate written record of the dates, times and duration of the offending activity or situation including a description of its nature and the distress it causes you in the reasonable occupation of your home.
It is strongly recommended that you can demonstrate to the court that you have made sincere attempts at resolving the problem informally before contacting the court, and by writing to the person responsible for the nuisance. If you know where the nuisance is coming from but do not know what or who is causing it, then making contact with the owner or occupier of the premises is strongly advised.
Providing notice
If you decide to take action under section 82 of the Environmental Protection Act 1990 you must give the alleged perpetrator the following advanced notice:
- At least twenty-one days’ notice in writing that you are pursuing this course of action and provide them with details of your complaint.
- If the nuisance is noise then you must allow three days notice of your intention and provide them with details of your complaint.
- Deliver your notice by post or hand and make sure your letter is dated and you have kept a copy.
Working with the magistrates court
When you contact the court, tell them you wish to make a complaint under section 82 of the Environmental Protection Act 1990. You will probably need to visit the court where the procedure will be explained to you and you may be asked for evidence of the problem. This will show the magistrates that you have an arguable case. You should also let the court know if you have notified Sandwell Metropolitan Borough Council. The court will decide if a summons can be issued, and may ask you to serve it (by hand or by post) on the person responsible for the nuisance stating the date and time of the court hearing.
Serving summons
If you serve the summons, you should keep a careful record of doing so, and ensure that the summons is served well before the hearing date. When the time comes for the hearing, you will have to attend court to give evidence. The person responsible for the nuisance will very likely come to the court to defend themselves and may even make counter-accusations.
Attending court
You do not need to have a solicitor to represent you at the hearing, although you may do so if you wish. 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.
Getting help with costs
Legal representation is not available for this type of case through the legal aid scheme. However, you may be financially eligible under the ‘Legal Help’ Scheme and this may provide free or subsidised legal advice and assistance in preparation of your case. If you are going to represent your own case, the Clerk of the Court may give you advice and guidance. Alternatively, you can contact your local Citizen’s Advice Bureau which may be able to offer assistance.
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 by you in bringing the action against your neighbour. 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 your neighbour 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.
If the nuisance continues following the court order, any person contravening the requirements of an abatement order without reasonable excuse can be found guilty of an offence under the Act and can be fined.
Again you should keep your record of the disturbances up to date in case the order is being ignored and it proves necessary to return to court. The procedure for initiating a future case will be the same as for the original proceedings.
Alternatives
Taking Civil Action
You can take civil action for a nuisance at common law by seeking either an injunction to restrain the defendant from continuing the nuisance and/or by issuing a claim for damages or loss.
Taking out a civil action can be expensive, so it is highly advisable to seek the advice of a solicitor or the Citizen’s Advice Bureau before going ahead. Advice from a solicitor may be free to those who are financially eligible under the ‘Legal Help Scheme’. Under this scheme, a solicitor will be able to give you general advice on whether you will be likely to meet the means and merit tests which apply to applications for full public funding (formerly legal aid) in civil cases.