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Statutory nuisance: The validity of abatement notices

Malcolm, R (2000) Statutory nuisance: The validity of abatement notices Journal of Planning and Environment Law (SEPT.). pp. 894-903.

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Abstract

At the heart of the body of environmental controls available to local councils lies the concept of statutory nuisance under Part III of the Environmental Protection Act 1990 ('the Act'). Local councils have a duty to investigate their areas from time to time seeking for the existence of statutory nuisances. In reality, the use of their powers is usually triggered by a complaint and, indeed, the Act specifically empowers them to follow up such complaints where it is reasonably practicable that they should do so. As is well known, the prime weapon is the abatement notice which must be served where the officers have formed the view that a statutory nuisance exists. An appeal to the magistrates' court lies within 21 days of the service of this notice. The effect of an appeal is normally to suspend the notice until the appeal has been heard. In the event that no appeal is made and yet the notice is not complied with, the local authority have a discretion to prosecute. It can be seen that these procedures mix administrative law with civil and criminal outcomes. The service of a notice is an administrative act and an appeal against it would be civil in nature, whereas a prosecution for failure to comply with a notice would be criminal in nature. But, both sets of proceedings take place in the magistrates' court with the potential for confusion in terms of the rules of evidence and the procedures that each entail. What should be a relatively straightforward procedure has become one where the complexities of the law and the variations from one case to another mean that drafting a watertight abatement notice has become an unrealised ambition by many an officer. It might not be an exaggeration to suggest that most abatement notices have become appealable on such grounds as these. If the interpretation of the requirements of section 80(1) means that officers could simply serve notices which required an abatement of the nuisance without specifying the manner of the abatement, then the problem might be resolved. A number of Divisional Court cases have considered this issue but without any satisfactory resolution. Some of these have now gone to the Court of Appeal and the latest of these has attempted to cut through this Gordian knot by taking this route to the interpretation of the statute.

Item Type: Article
Authors :
NameEmailORCID
Malcolm, Rr.malcolm@surrey.ac.ukUNSPECIFIED
Date : 1 September 2000
Depositing User : Symplectic Elements
Date Deposited : 16 May 2017 14:53
Last Modified : 17 May 2017 14:28
URI: http://epubs.surrey.ac.uk/id/eprint/815590

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