Taking private nuisance action

It is likely that everyone will be affected by nuisance at some point in their lives and the Council may be able to investigate a nuisance on your behalf. However, under some circumstances we may not be able to take action, i.e. due to a lack of evidence, type of nuisance etc. If we cannot take action, or you would prefer to the take action yourself, there are alternative options.

Any person affected by nuisance has the right to complain directly to the Magistrates’ Court under section 82 of the Environmental Protection Act 1990. The Magistrate will need to be convinced that the problem amounts to a statutory nuisance.

If you're concerned about nuisance from a neighbouring property, make sure you try to talk to the problem maker first; a Magistrate will expect this to be done before you go to Court and it is always best to try to resolve the problem informally.

If you'd like to write the problem maker, you can use once of our letter templates below depending on the issue:

• Neighbour letter template - noise nuisance
• Neighbour letter template - light nuisance
• Neighbour letter template - smell nuisance
• Neighbour letter template - smoke nuisance

Make a note of the dates every time you approach the problem maker and asked them to stop. The Court will be more sympathetic to your case if you have demonstrated that you have already taken the necessary steps in a friendly manner.

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 (such as a nuisance diary). This will show the Magistrates that you have a reasonable case. You should also let the court know if you have notified the Council's Environmental Health Department of the problem.

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 noise, stating the date and time of the court hearing. If you serve the notice, you should keep a careful record and ensure that the notice 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 is likely come to the court to defend themselves, and may even make counter-accusations. 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.

If the court decides in your favour it will make an order requiring the offender to abate the noise 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 may award you the reasonable costs incurred by you in bringing the action against the noise maker. 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 the noise maker 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.

You can take civil action for 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 civil action can be expensive, so it is highly advisable to seek the advice of a solicitor, or the Citizens Advice 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.