B6.1.1 Statutory Nuisance
A Statutory Nuisance is something that is defined in legislation, as listed above, and perceived as a nuisance by someone else.
The Environmental Protection Act 1990 lists activities that are classed as a nuisance in Part III. These include:
- Any premises in such a state as to be harmful to health or a nuisance.
- Smoke coming from premises that is harmful to health or a nuisance.
- Fumes or gases coming from private dwellings that is harmful to health or a nuisance.
- Any dust, steam, smell or other effluvia (odorous fumes given off by waste) arising on industrial, trade or business premises that is harmful to health or a nuisance.
- Any accumulation or deposit which is harmful to health or a nuisance.
- Any animal kept in a place or manner which is harmful to health or a nuisance.
- Noise that is harmful to health or a nuisance.
These are outlined in Section 79 of the Act and is considered to be the ‘definition of statutory nuisance’.
There are specific issues that the regulations state must be to be taken into account when judging whether a noise amounts to an actionable nuisance. They are listed below but nearly always need to be considered in combination:
1. The time of the day.
- Night-time noise that is likely to disturb sleep is much more likely to be actionable than daytime noise.
2. The duration of the noise.
- Unpredictable sporadic noise has a greater capacity to create nuisance (subject of course to other factors listed here).
3. The frequency of the noise.
- Tonal content of noise (e.g. a whine can significantly increase the capacity of a noise to create a nuisance).
4. Whereabouts the noise is heard.
- Noise (from a premises) audible in the street, but not in a house is very unlikely to be an actionable nuisance (even if the noise is heard within a dwelling, if it only affects a bathroom or kitchen (not otherwise used as a living room), then action is unlikely).
5. Defendant’s motives.
- Even an otherwise innocent act could be an actionable nuisance if it is done with malice although this can be very difficult to determine.
6. The character of the neighbourhood.
- Where the background noise level is low for example in an entirely residential area, the threshold at which sound can be heard will be lower and noise is more likely to be at an actionable level.
7. Continuous or repetitive incidents compared to isolated incidents and the time the nuisance occurs.
8. Unusual sensitivity.
9. ‘The Eggshell Skull Rule’: if a plaintiff is particularly sensitive to a particular type of noise, it is not actionable unless one can show that the noise would have affected a “reasonable’ person’s” enjoyment of their property.
The term “reasonable person” is also used frequently in health and safety law. It is considered to mean a person with ordinarily expected degrees of intelligence, knowledge, attentiveness, care, skill and judgement. Such a person would be expected to act in a standard of behaviour and responsibility that corresponds with those generally obtained by ordinary people. In layman’s terms it could be considered an ‘ordinary / average person’.
It is important to note that there are no set levels. In Safety legislation, noise limits are defined as specific decibel levels. In environmental legislation they are not.
For example:
- If you create a lot of noise in the middle of a field, with no local businesses or residents to hear you (and therefore perceive you as a nuisance) you will not be creating a nuisance.
- If you create a small amount of noise in a residential area, especially at night, you are likely to create a nuisance.