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Penalties for Non-Compliance
It is an offence to contravene the requirements of the notice "without
reasonable excuse" and the penalties are currently a fine of ?5000, or
?20,000 if the offence was committed on trade or business premises. In practice
fines can vary between ?50 and ?5000; in our experience, larger fines than this are
unusual.
Appealing a Notice
Anyone served with a notice can appeal it with 21 days of service.
Note that
- Legal Aid is not normally available for this type of action
- the 21-day "clock" starts running on the day the notice is
received, i.e. the day of service is day 1.
- The term "notice" can include an accompanying letter - see
"Camden London Borough Council v London Underground Ltd" at Omega Replica Watches
Swarbrick and Co Solicitors
Grounds of appeal are set out in the Statutory Nuisance Appeals
Regulations and these include the following-
- That the abatement notice is not justified - there is no nuisance; see
"Surrey Free Inns PLC v Gosport BC" and "Murdoch & An v
Glacier Metal Co Ltd." at
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- That there has been a serious informality defect or error in the notice -
generally this relates to legal matters; for example
Swarbrick and Co Solicitors
reports the "Network Housing Association Ltd v Westminster CC"
decision as "noise abatement notice must be precise enough to say what work
required", i.e. if a noise limit is set, the Notice must specify the works
necessary to comply with the limit. Although see also Sevenoaks
District Council v Brands Hatch Leisure Group Limited (Divisional Court
8.5.00). The September 2000 issue of Environment
Bulletin reported that "The Court held that although the
notice did include a requirement to 'take steps' it had not in fact required
any works to be carried out and simply set the standards to be
achieved. Accordingly the Council was not required to specify the
steps..". See also R v Falmouth & Truro Port Health Authority
ex parte South West Water Limited ([2000] 3 All ER 306); this Court of Appeal
decision had a lot to say about whether Notices have to be specific when works
are required. There is also a 2009 case which considered that when
steps or works are required they have to be specified -
Elvington Events Ltd.
- That the authority have refused unreasonably to accept compliance with
alternative requirements. It may be argued that compliance with recent planning
consent conditions regarding noise are suitable alternative requirements,
although planning consent does not confer immunity from other legislation, e.g.
The Environmental Protection Act; see "Wheeler & An v J J Saunders Ltd
et al" at
Swarbrick and Co Solicitors
.
-
That the requirements of the notice are
unreasonable in character or extent or are unnecessary; for example, one of the
Notices in which we were instructed required the painting of a structure in a
particular colour - clearly this did not relate to noise or vibration
disturbance and therefore was an
unreasonable and unnecessary requirement.
- That the time[s] for compliance are not sufficient - the notice may
recognise that a building is a possible method of controlling (surrounding)
the noise. It takes several months at the shortest to design,rolex replica watches get planning
consent, go out to tender and finally construct a building; therefore if the
notice required abatement within 28 days, the time for compliance would be
insufficient.
- That for most nuisances created on industrial trade or business
premises/land that the
Best Practicable Means
were used
to prevent or counter-act the effects of the nuisance. Note that it would
appear that the
nuisance does not have to be created by a trade or business, just on trade
or business premises.
- That the requirements of the notice are more onerous than notices
previously served under the Control of Pollution Act 1974. This mainly
refers to construction site noise.
- That the notice should have been served
on someone else instead, e.g. if you are the owner of land and your tenant,
unbeknown to you, holds a pop concert, he is "the person responsible" and should
have been served with the notice.
- That the notice should have been served
on someone else in addition - you only hold a party in the student accommodation
once per year; it is the fact that the other 100 student residents doing the
same, than leads to a nuisance at the nearby property.
The appealing of a notice is important because the statutory grounds of
appeal can only be pursued by way of appeal. They are not generally available as
a defence to prosecution for non-compliance with a notice [see A Lambert Flat
Management Ltd -v- Lomas (1981) 1 WLR 898 DC.]
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