Community protection Legal action as a last resort

You can take your own action by making a complaint directly to the magistrates court regarding any matter which you believe to be a nuisance, under Section 82 of the Environmental Protection Act 1990.

If this is your chosen course of action, we'd advise you to consult a solicitor or your local Citizen’s Advice bureau. Find your local branch on the CAB website. Please note that you would be responsible for any costs incurred by such action. The magistrates court will need to be persuaded that a problem amounts to a statutory nuisance.

The advice below is intended to help you take your own independent action when you are being disturbed by noise/odour/smoke etc.

Preparing your case

Before you start legal proceedings you should have discussed the nuisance with the source in an amicable way and tried to have solved the problem informally.

You should keep records of when the nuisance occurs - this needs to be written clearly and in ink. You need to keep a record of the dates, times and duration of the nuisance and the effect of the disturbance on you. Also keep notes of all discussions and correspondence between you and the source. Any letters you post should either be sent recorded delivery or subject to a receipt of posting. You should be satisfied at this point that legal action is the only course of action left to you.

Be aware that your written notes, records and correspondence are the only evidence the court officers can use to assess your complaint, so be careful to write up events at the time they occurred, not some time later, and make sure that they're accurate and valid. Don't exaggerate.

Witnesses

Note the names and addresses of anyone else who has witnessed the nuisance. You won't be allowed to tell the court what someone else said, so make sure that they write down what they witnessed. Let witnesses write statements in their own words and don't prompt them. Witnesses must confirm that their statement is in their own words and is a true account of what occurred. They should sign and date it and get someone else to sign it to say that their signature is correct.

The court prefers witnesses to appear in court in person to tell them in their own words what happened, so you should obtain your witness’s full name and address and confirmation that they're willing to appear in court if necessary.

You can also ask other neighbours, if they're affected, to keep similar diaries to support you in court. You may have difficulty proving your case without witnesses, particularly if the source of the nuisance disagrees with what you say.

Applying to the court

When you've decided to start legal proceedings and collected all your evidence, you'll need to give the source of the nuisance at least three days clear notice of your actions along with details of your complaint. Make sure you keep a copy of this correspondence and make a note on your records.

The next step is to contact the court and tell them you wish to make a complaint under section 82 of the Environmental Protection Act 1990. Be sure that you wish to pursue the matter to the end, as you need to be prepared to appear in court and give verbal and written evidence to support your case. The court will explain the procedure and ask for the evidence you've collected. It's a good idea to tell them that you've complained to the Environmental Health Department.

You'll need to give the court the following information:

• The name and address of the person(s) causing the nuisance (this is needed for serving the summons correctly)
• The full name of the occupier, if different
• The address from where the nuisance emanates
• Any solicitor’s letters to the person responsible for the nuisance
• A letter from us advising you to take your own action
• Documents to support your case (nuisance diaries, witness statements etc)

From your evidence, the court will decide whether to issue a summons. It will be your responsibility to serve the summons on the source of the problem, and the court can give you advice on how to serve the summons properly. You should serve the summons well before the hearing date, at which time you'll have to attend court to give evidence. It's likely that the source of the nuisance will attend the court to defend themselves.

You can conduct your own case, but you may be advised to engage a solicitor at your own expense. It's a good idea to obtain some legal advice at some point to make sure you have a case and are proceeding correctly.

If you're on a low income you may be eligible for free legal advice (ask a solicitor). Be warned that should you lose your case you may have to pay the costs.

Your local Citizens Advice bureau may also be able to help, or phone Shrewsbury CAB on 08444 99 11 00.

This information is not an authoritative interpretation of the law and is intended as a guide only. You should contact a solicitor for legal advice.