1 Statutory nuisances
14.55 Many emissions of odour or smoke from farm premises may constitute statutory nuisances within the scope of the Environmental Protection Act 1990.116 The local authority has a duty to inspect its area to detect any statutory nuisances that need to be dealt with, and has a duty to take steps to investigate any complaint made to it of the commission of such a nuisance.
‘Statutory nuisances’ are defined to include:117(a)any premises in such a state as to be prejudicial to health or a nuisance;
(b)smoke emitted from premises so as to be prejudicial to health or a nuisance;
(c)fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
(d)any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
(e)any accumulation or deposit that is prejudicial to health or a nuisance;
(f)any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
(g)noise emitted from premises so as to be prejudicial to health or a nuisance;
(h)any other matter declared by statute to be a statutory nuisance.
(a)Abatement notices
14.56 If the local authority environmental health department is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an abatement notice.118 This must;
(a)require the abatement of the nuisance or prohibit or restrict its recurrence or occurrence; and
(b)require the execution of such works, and the taking of such other steps, as may be necessary for its abatement or prevention.
14.57 The person served with notice has 21 days in which to appeal against the notice to a magistrate’s court. The magistrates’ court also has power119 to act on a complaint made by a private person who claims to be aggrieved by the existence of a statutory nuisance, and can (if the case is made out) by order require abatement of the nuisance complained of.
(b)Criminal liability
14.58 A person who fails, without reasonable excuse, to comply with the terms of an abatement notice is guilty of an offence. Where the offence occurs on trade premises, as will be the case in most agricultural enterprises, this is punishable with a fine not exceeding £20,000.120 It is a defence to prove that the ‘best practical means’ were used to prevent or to counteract the effects of the nuisance. ‘Best practicable means’ are defined to mean;121
(a)‘practicable’ is defined to mean reasonably practicable having regard to local conditions and circumstances, to the current state of technical knowledge and to the financial implications;
(b)regard must be had to the design, installation, maintenance, manner and periods of operation of plant and machinery, and to the design, construction and maintenance of buildings and structures;
(c)the test is only to apply insofar as compatible with safety and safe working conditions, and with the exigencies of any emergency or unforeseeable circumstances. It is also only to be employed insofar as compatible with ‘any duty imposed by law’.
(c)Statutory nuisance and development control
14.59 The fact that the activity from which the nuisance emanates is carried out within a development authorised by the grant of planning permission does not prevent it constituting an actionable nuisance, and provides no defence per se. So, in Wheeler v J.J. Saunders Ltd122 the fact that pig-housing units were erected with planning consent, did not prevent the subsequent issuance of noxious fumes from the facility constituting an actionable nuisance. Similarly, the carrying out of motocross racing with planning permission on farmland in Coventry v Lawrence123 did not prevent it amounting to an actionable nuisance where noise pollution was complained of by neighbouring residential occupiers:
‘the mere fact that the activity which is said to give rise to the nuisance has the benefit of planning permission is normally of no assistance to the defendant in a claim brought by a neighbour who contends that the activity causes a nuisance in the form of noise or other loss of amenity’.124
14.60 It is nevertheless the case that the grant of planning permission can legitimise some nuisances by changing the character of the locality, as may be the case where major industrial or infrastructure development is granted development consent.1 The court of appeal in Wheeler v J.J.
Saunders held that this would not be the case, however, where the building of individual pig units was authorised in the open countryside. Semble this rule would also apply even if an environmental impact assessment has been carried out prior to the grant of development consent by the planning body. Similarly, it has now been held that an activity carried out in accordance with the terms of an environmental permit can also constitute an actionable nuisance.125 The issuance of an environmental permit does not constitute statutory authorisation to commit a nuisance.14.61 Wheeler v J.J. Saunders Ltd and the other recent decisions126 have concerned actions for private nuisance brought against the operators of agricultural and trade premises, but there is no reason in principle why the same principles should not be applied to claims for statutory nuisance, which involve similarly difficult issues of balancing private and public interests in land use. The grant of express planning consent, whether with or without an environmental impact assessment, will not it is submitted provide a defence to proceedings for statutory nuisance under the 1990 Act. Neither will the fact that the development was carried out with permitted development rights under the terms of the General Permitted Development Order 2015.127