The effectiveness of the statutory nuisance procedure

Dr Tim Everett provides a snapshot into his research into the effectiveness of the statutory nuisance procedure across the UK.

I recently completed six years of research into this procedure which I presented to CIEH members at a webinar in June. My research looked in detail at seven key areas of the law which continue to pose challenges for practitioners. I analysed detailed interviews with practitioners and legal experts, as well as responses to two online surveys where practitioners shared their experiences of using the procedure. I also reviewed the available empirical information on its use.

The statutory nuisance procedure today

With its roots in the mid-19th century, the statutory nuisance procedure is still being used by Councils to deal with a wide range of amenity nuisances and things that affect health. While the legislation in different parts of the UK have followed different routes, the more modern version has been applied everywhere since 2011.

Hundreds of thousands of public complaints are made to Councils every year, so its effective use is important to all involved. As part of my research, I looked at the reports of the Local Government Ombudsmen in response to the public’s complaints of poor service in trying to get their problems resolved by Councils.

Key findings of the research

Many practitioners have had little or no recent experience of dealing with appeals against the formal notices served or prosecutions when they are not complied with. This feeds into avoidance of the duty to serve such notices all the times they should be.

Reductions in local courts, and the lack of judges who are knowledgeable about the procedure, have also caused problems. Covid-19 unsurprisingly had a major impact on investigating complaints.

Complaints do not automatically require a visit as there are other ways of getting relevant initial information. However, both the quick closure of some complaints, and the refusal to investigate certain categories at all, challenges Councils’ duty to do this. One London Borough was successfully challenged for adopting an unlawful policy that meant over 6,000 noise complaints were not investigated or dealt with.

The pressure on resources puts practitioners between the proverbial rock and a hard place. Many practitioners in England are often unaware of the requirements to properly record and publish delegated regulatory decisions about the service of formal notices and their enforcement. Failure to do this can make those decisions invalid.

Further findings

The variability of judicial decision-making on this subject extends to the higher courts. One important decision means that a different interpretation of the key phrase “prejudicial to health” must be applied to the various categories of statutory nuisance depending on when they were added.

Human Rights legislation and case-law means that relevant issues must be properly considered and recorded when taking such regulatory decisions to avoid legal challenges. The failure to serve notices and enforce them can also be challenged in this way.

The English Local Government and Social Care Ombudsman’s complaint handling is highly variable. Many of its investigators appear to have no understanding of the relevant law, and there is inadequate management oversight to ensure consistency.

Unlike their Scottish counterparts they never seek independent professional advice whatever the facts of the complaint – although they have the clearest statutory powers to do so.

Recommendations and moving forward

Making effective use of these provisions remains an important way for Councils to deal with a wide range of the problems brought to them each year. Sections of the thesis, including recommendations for all key actors, can be accessed on www.environmentalhealthlaw.co.uk.

Are you interested in learning how to use statutory nuisance procedures more effectively? Dr Tim Everett leads Bitesize training sessions on statutory nuisance as part of CIEH’s annual event programme.