Section 82

Section 82

Introduction

Whilst we would advise contacting your Council or social landlord first, there are other options available to individuals suffering from noise nuisance that may not involve noise enforcement agencies. One such option involves the use of “section 82″ by a “person aggrieved”.

If informal methods to rectify the problem prove unsuccessful, in most areas of the UK, you can also take your own statutory nuisance action against perpetrators of noise (using pretty much the same legislation as the local authority). This is referred to as section 82 action and involves the aggrieved party making a complaint direct to the magistrate’s court who can issue an order for its abatement. Section 82 of the Environmental Protection Act 1990 can be viewed here.

You don’t necessarily need a solicitor to do this and need not cost much. However, there are risks involved when taking your own action so you may wish to seek legal advice.

When is Section 82 Appropriate?

There are certain circumstances where we feel that taking action via section 82 may be a viable option. The first is where the local authority are unable to take action themselves.

Obtain suitable information from the local authority first if they have been involved in investigating your complaint as to why they were not able to take action. If the Council are of the opinion that a nuisance does not exist or that the noise is not unreasonable think very carefully before pursuing this form of action. It may be appropriate where they have been unable to investigate your case fully, if for example: they have been unable to witness the noise over a period of time; do not have sufficient resources to investigate at night; or have taken too long to respond.

You might also wish to take action against the local authority themselves if they are the body responsible for the noise.

The noise must also meet the “threshold” for statutory nuisance and you must be able to present sufficient evidence to back up your case.

The process involves making a complaint to a court. In order to accept your complaint it must be made within 6 months of the last occurrence. However, we recommend using the process for matters that are ongoing in order to resolve current problems unless it can be proven that the nuisance is likely to recur. In order for an abatement order to be issued by the court you must be able to prove that the nuisance is in existence at the date of the court hearing (or be able to prove that it is likely to recur).

Statutory Nuisance

The standard is the same under this section as those enforced by the local authority. The personal comfort of the person aggrieved (or their family members) must be affected to a sufficient degree for a statutory nuisance to exist; in addition, the noise must be excessive and unreasonable. See our section on statutory nuisance.

The “person responsible” for the nuisance is usually the person making the noise but may be a parent or guardian in some circumstances. If the problem is due to a structural defect the person responsible is likely to be the owner of the property.

The “person aggrieved” is usually the person who is suffering from the noise. If there is more than one person/household each may bring their own complaint or make a combined complaint.

Preparing Your Case

If you do take your own action you should prepare your case carefully, gather plenty of evidence and follow legal procedures very carefully. As always with statutory nuisance the quality and quantity of your evidence will be the key to your success. You should be able to provide evidence meeting a high standard.

Keep a copy of all correspondence and log all of your observations and conversations carefully.

Following the Correct Steps

There are some important steps that should be followed if you wish to take your own action including providing a written warning to your neighbour. You will need to follow the following steps (making sure that at all times you continue to record your evidence):

Step 1

Approach the person responsible and politely explain the nature of the problem. You may have already done this. Alternatively, you may write to the person responsible. The main thing is that you let them know that there is a problem and give them a chance to rectify the situation.

Step 2

If, after a reasonable period of time, the noise persists at an unreasonable level write to the person responsible for the nuisance. Specify the matters being complained of. Inform them that if the nuisance is not abated or reduced to an acceptable level within a period of 14 days a formal complaint will be made to the local Magistrates’ Court. Keep a record of the time and date of service. We have an example form in our download/resources section.

Step 3

After the 14 day time period has expired and, assuming the nuisance has not abated, you may make a complaint to the Court (either directly yourself or through a solicitor). This is done by laying information accompanied by a notice of intention (the latter of which will be necessary for informing the person responsible). Keep a record of the time and date of making the complaint. We have an example form in our download/resources section. Find your local court.

A justice will examine your complaint and determine whether or not to issue a summons to the person responsible. They will issue a hearing date and a summons for the defendant in the case (the person responsible). You will need to serve the summons on that person properly; either by delivering it by hand or by posting it to the address where they live. Keep a record of the time, date of service and how it was served.

Step 4

In court you will both have a chance to present your evidence. You both may provide oral and documented evidence yourself and call witnesses to do the same. Both parties may have employed solicitors and enlisted the support of an expert.

If, after hearing the evidence from both parties, the court is of the opinion that a statutory nuisance exists they may make an order that requires the defendant to abate and/or prevent the recurrence of the nuisance within a specified time period. They may include works that must be taken. Breach of an abatement order is an offence.

The court may also fine the defendant up to a maximum £5000. However, it is likely to be considerably less.

The person responsible may appeal against the decision of the court.

Costs and Compensation

As well as a fine the proceedings may lead to a compensation order and costs being awarded. The criminal compensation order is awarded to the victim at the discretion of the court. Whilst the compensation order may be granted up to a level of £5000 the court will often award a modest sum, if at all; the level of which depends upon the evidence put forward. It will also only relate to the period between the expiry of the notice of your intention and the hearing itself. You will need to be prepared to make a formal application for the award along with detail of any losses incurred through the sufferance of the nuisance. However, a separate civil action for damages may also be made.

Success with Section 82

Your chances of success and willingness to proceed with a s.82 complaint may be influenced by a number of factors including:

• Unfamiliarity with the process of following strict legal procedures (such as the service of documents).
• Being uncomfortable representing yourself in court or finding the costs of instructing a solicitor prohibitive.
• The prospect of being held liable for the costs (which may be considerable) of the other party and well as their own if you are unsuccessful.
• The fact that proceedings are criminal in nature, requiring the higher standard of proof (as opposed to procedures relating to abatement notices served by the local authority which are civil).
• The need for rigorous evidence perhaps without the qualification of experience or knowledge of the field and the law.

Section 82 was a great introduction to the law of statutory nuisance in the Environmental Protection Act 1990. It provides victims with the ability to access justice locally and efficiently. However, the procedures must not be entered into frivolously.