Part III E+W+S Statutory Nuisances and Clean Air

Modifications etc. (not altering text)

C1 Pt. III (ss. 79-85) applied: (E.W) (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 167(2), 225(2) (with ss. 16(6), 179, 222(3), Sch. 22 para. 1, Sch. 23 para. 6); (E.W.) (1.12.1991) by Land Drainage Act 1991 (c. 59, SIF 73:1), ss. 15(3), 76(2) (with ss. 67(3)(5)(8), 72(6), 74(3)(4)); and (1.8.1991) by S.I. 1991/1773, art. 8, Sch. 2

Pt. III (ss. 79-85) amended (27.8.1993) by 1993 c. 12, ss. 40, 49(2), Sch. 3 Pt. I para.7, Sch. 5 Pt. II para.8 (with ss. 42, 46)

Pt. III (ss. 79-85) excluded (27.8.1993) by 1993 c. 11, s. 42(4)

Pt. III (ss. 79-85) power to exclude conferred (27.8.1993) by 1993 c. 11, ss. 45(1)(a), 47(1)(a)

C2 Pt. 3 modified (E.) (6.4.2010) by The Bristol Port Health Authority Order 2010 (S.I. 2010/1214), art. 4, Sch.

C3 Pt. 3 modified (E.) (6.4.2010) by The Cowes Port Health Authority Order 2010 (S.I. 2010/1216), art. 4, Sch.

C4 Pt. 3 modified (E.) (6.4.2010) by The Portsmouth Port Health Authority Order 2010 (S.I. 2010/1217), art. 4, Sch.

C5 Pt. 3 modified (E.) (6.4.2010) by The Southampton Port Health Authority Order 2010 (S.I. 2010/1218), art. 4, Sch.

Statutory nuisances: England and Wales E+W+S

79 Statutory nuisances and inspections therefor. E+W

(1) Subject to subsections (2) to (6) below, the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say—

(a) any premises in such a state as to be prejudicial to health or a nuisance;

(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;

(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;

(d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;

(e) any accumulation or deposit which is prejudicial to health or a nuisance;

(f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;

(g) noise emitted from premises so as to be prejudicial to health or a nuisance;

(h) any other matter declared by any enactment to be a statutory nuisance;

and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.

(2) Subsection (1)(b) and (g) above do not apply in relation to premises—

(a) occupied on behalf of the Crown for naval, military or air force purposes or for the purposes of the department of the Secretary of State having responsibility for defence, or

(b) occupied by or for the purposes of a visiting force;

and “visiting force” means any such body, contingent or detachment of the forces of any country as is a visiting force for the purposes of any of the provisions of the Visiting Forces Act 1952.

(3) Subsection (1)(b) above does not apply to—

(i) smoke emitted from a chimney of a private dwelling within a smoke control area,

(ii) dark smoke emitted from a chimney of a building or a chimney serving the furnace of a boiler or industrial plant attached to a building or for the time being fixed to or installed on any land,

(iii) smoke emitted from a railway locomotive steam engine, or

(iv) dark smoke emitted otherwise than as mentioned above from industrial or trade premises.

(4) Subsection (1)(c) above does not apply in relation to premises other than private dwellings.

(5) Subsection (1)(d) above does not apply to steam emitted from a railway locomotive engine.

(6) Subsection (1)(g) above does not apply to noise caused by aircraft other than model aircraft.

(7) In this Part—

• “chimney” includes structures and openings of any kind from or through which smoke may be emitted;

• “dust” does not include dust emitted from a chimney as an ingredient of smoke;

• “fumes” means any airborne solid matter smaller than dust;

• “gas” includes vapour and moisture precipitated from vapour;

• “industrial, trade or business premises” means premises used for any industrial, trade or business purposes or premises not so used on which matter is burnt in connection with any industrial, trade or business process, and premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purposes of manufacturing;

• “local authority” means, subject to subsection (8) below,—

  (a)

  in Greater London, a London borough council, the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;

  (b)

  outside Greater London, a district council; and

  (c)

  the Council of the Isles of Scilly;

• “noise” includes vibration;

• “person responsible”, in relation to a statutory nuisance, means the person to whose act, default or sufferance the nuisance is attributable;

• “prejudicial to health” means injurious, or likely to cause injury, to health;

• “premises” includes land and, subject to subsection (12) below, any vessel;

• “private dwelling” means any building, or part of a building, used or intended to be used, as a dwelling;

• “smoke” includes soot, ash, grit and gritty particles emitted in smoke;

and any expressions used in this section and in the M1 Clean Air Act 1956 or the M2 Clean Air Act 1968 have the same meaning in this section as in that Act and section 34(2) of the Clean Air Act 1956 shall apply for the interpretation of the expression “dark smoke” and the operation of this Part in relation to it.

(8) Where, by an order under section 2 of the M3 Public Health (Control of Disease) Act 1984, a port health authority has been constituted for any port health district, the port health authority shall have by virtue of this subsection, as respects its district, the functions conferred or imposed by this Part in relation to statutory nuisances other than a nuisance falling within paragraph (g) of subsection (1) above and no such order shall be made assigning those functions; and “local authority” and “area” shall be construed accordingly.

(9) In this Part “best practicable means” is to be interpreted by reference to the following provisions—

(a) “practicable” means reasonably practicable having regard among other things to local conditions and circumstances, to the current state of technical knowledge and to the financial implications;

(b) the means to be employed include the design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structures;

(c) the test is to apply only so far as compatible with any duty imposed by law;

(d) the test is to apply only so far as compatible with safety and safe working conditions, and with the exigencies of any emergency or unforeseeable circumstances;

and, in circumstances where a code of practice under section 71 of the M4 Control of Pollution Act 1974 (noise minimisation) is applicable, regard shall also be had to guidance given in it.

(10) A local authority shall not without the consent of the Secretary of State institute summary proceedings under this Part in respect of a nuisance falling within paragraph (b), (d) or (e) of subsection (1) above if proceedings in respect thereof might be instituted under Part I of the M5 Alkali &c. Works Regulation Act 1906 or section 5 of the M6 Health and Safety at Work etc. Act 1974.

(11) The area of a local authority which includes part of the seashore shall also include for the purposes of this Part the territorial sea lying seawards from that part of the shore; and subject to subsection (12) below, this Part shall have effect, in relation to any area included in the area of a local authority by virtue of this subsection—

(a) as if references to premises and the occupier of premises included respectively a vessel and the master of a vessel; and

(b) with such other modifications, if any, as are prescribed in regulations made by the Secretary of State.

(12) A vessel powered by steam reciprocating machinery is not a vessel to which this Part of this Act applies.

Marginal Citations

M1 1956 c. 52.

M2 1968 c. 62.

M3 1984 c. 22.

M4 1974 c. 40.

M5 1906 c. 14.

M6 1974 c. 37.

80 Summary proceedings for statutory nuisances. E+W

(1) Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice (“an abatement notice”) imposing all or any of the following requirements—

(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;

(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes,

and the notice shall specify the time or times within which the requirements of the notice are to be complied with.

(2) The abatement notice shall be served—

(a) except in a case falling within paragraph (b) or (c) below, on the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, on the owner of the premises;

(c) where the person responsible for the nuisance cannot be found or the nuisance has not yet occurred, on the owner or occupier of the premises.

(3) The person served with the notice may appeal against the notice to a magistrates’ court within the period of twenty-one days beginning with the date on which he was served with the notice.

(4) If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence.

(5) Except in a case falling within subsection (6) below, a person who commits an offence under subsection (4) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one-tenth of that level for each day on which the offence continues after the conviction.

(6) A person who commits an offence under subsection (4) above on industrial, trade or business premises shall be liable on summary conviction to a fine not exceeding £20,000.

(7) Subject to subsection (8) below, in any proceedings for an offence under subsection (4) above in respect of a statutory nuisance it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance.

(8) The defence under subsection (7) above is not available—

(a) in the case of a nuisance falling within paragraph (a), (d), (e), (f) or (g) of section 79(1) above except where the nuisance arises on industrial, trade or business premises;

(b) in the case of a nuisance falling within paragraph (b) of section 79(1) above except where the smoke is emitted from a chimney; and

(c) in the case of a nuisance falling within paragraph (c) or (h) of section 79(1) above.

(9) In proceedings for an offence under subsection (4) above in respect of a statutory nuisance falling within paragraph (g) of section 79(1) above where the offence consists in contravening requirements imposed by virtue of subsection (1)(a) above it shall be a defence to prove—

(a) that the alleged offence was covered by a notice served under section 60 or a consent given under section 61 or 65 of the M7 Control of Pollution Act 1974 (construction sites, etc); or

(b) where the alleged offence was committed at a time when the premises were subject to a notice under section 66 of that Act (noise reduction notice), that the level of noise emitted from the premises at that time was not such as to a constitute a contravention of the notice under that section; or

(c) where the alleged offence was committed at a time when the premises were not subject to a notice under section 66 of that Act, and when a level fixed under section 67 of that Act (new buildings liable to abatement order) applied to the premises, that the level of noise emitted from the premises at that time did not exceed that level.

(10) Paragraphs (b) and (c) of subsection (9) above apply whether or not the relevant notice was subject to appeal at the time when the offence was alleged to have been committed.

Marginal Citations

M7 1974 c. 40.

Valid from 26/01/2009

[F1 80ZA Fixed penalty notice: supplemental S

(1) This section applies to a fixed penalty notice given under section 80(4A).

(2) A fixed penalty notice must give reasonable particulars of the circumstances alleged to constitute the offence.

(3) A fixed penalty notice must also state—

(a) the amount of the fixed penalty;

(b) the period within which it may be paid;

(c) the—

(i) person to whom; and

(ii) address at which,

payment may be made;

(d) the method or methods by which payment may be made;

(e) the consequences of not making a payment within the period for payment.

(4) The amount of the fixed penalty under section 80(4A) is—

(a) in the case of a nuisance relating to industrial, trade or business premises, £400;

(b) in any other case, £150.

(5) The period for payment of the fixed penalty is 14 days beginning with the day after the day on which the notice is given.

(6) The local authority may extend the period for paying the fixed penalty in any particular case if they consider it appropriate to do so by sending notice to the person to whom the fixed penalty notice was given.

(7) No proceedings for an offence under section 80(4) may be commenced before the end of the period for payment of the fixed penalty.

(8) In proceedings for an offence under section 80(4), a certificate which—

(a) purports to be signed by or on behalf of a person having responsibility for the financial affairs of the local authority; and

(b) states that payment of the amount specified in the fixed penalty notice was or was not received by the expiry of the period within which that fixed penalty may be paid,

is sufficient evidence of the facts stated.

(9) Where proceedings for an offence in respect of which a fixed penalty notice has been given are commenced, the notice is to be treated as withdrawn.

(10) Any sum received by a local authority under section 80(4A) accrues to that authority.

(11) The Scottish Ministers may, by regulations—

(a) provide that fixed penalty notices may not be given in such circumstances as may be prescribed;

(b) provide for the form of a fixed penalty notice;

(c) provide for the method or methods by which fixed penalties may be paid;

(d) modify subsection (4)(a) or (b) above so as to substitute a different amount (not exceeding level 2 on the standard scale) for the amount for the time being specified there;

(e) provide for the amount of the fixed penalty to be different in different cases or descriptions of case;

(f) modify subsection (5) above so as to substitute a different period for the period for the time being specified there;

(g) provide for the keeping of accounts, and the preparation and publication of statements of account relating to fixed penalties under section 80(4A).

(12) Before making regulations under subsection (11) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (13) below.

(13) Those persons are—

(a) such associations of local authorities; and

(b) such other persons,

as the Scottish Ministers consider appropriate.]

Textual Amendments

F1 S. 80ZA inserted (S.) (26.1.2009) by Public Health etc. (Scotland) Act 2008 (asp 5) {ss. 113(3)}, 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

Valid from 05/01/1994

[F2 80A Abatement notice in respect of noise in street. E+W+S

(1) In the case of a statutory nuisance within section 79(1)(ga) above that—

(a) has not yet occurred, or

(b) arises from noise emitted from or caused by an unattended vehicle or unattended machinery or equipment,

the abatement notice shall be served in accordance with subsection (2) below.

(2) The notice shall be served—

(a) where the person responsible for the vehicle, machinery or equipment can be found, on that person;

(b) where that person cannot be found or where the local authority determines that this paragraph should apply, by fixing the notice to the vehicle, machinery or equipment.

(3) Where—

(a) an abatement notice is served in accordance with subsection (2)(b) above by virtue of a determination of the local authority, and

(b) the person responsible for the vehicle, machinery or equipment can be found and served with a copy of the notice within an hour of the notice being fixed to the vehicle, machinery or equipment,

a copy of the notice shall be served on that person accordingly.

(4) Where an abatement notice is served in accordance with subsection (2)(b) above by virtue of a determination of the local authority, the notice shall state that, if a copy of the notice is subsequently served under subsection (3) above, the time specified in the notice as the time within which its requirements are to be complied with is extended by such further period as is specified in the notice.

(5) Where an abatement notice is served in accordance with subsection (2)(b) above, the person responsible for the vehicle, machinery or equipment may appeal against the notice under section 80(3) above as if he had been served with the notice on the date on which it was fixed to the vehicle, machinery or equipment.

(6) Section 80(4) above shall apply in relation to a person on whom a copy of an abatement notice is served under subsection (3) above as if the copy were the notice itself.

(7) A person who removes or interferes with a notice fixed to a vehicle, machinery or equipment in accordance with subsection (2)(b) above shall be guilty of an offence, unless he is the person responsible for the vehicle, machinery or equipment or he does so with the authority of that person.

(8) A person who commits an offence under subsection (7) above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.]

Extent Information

E1 Ss. 79-82, which previously extended to England and Wales only, extend to Scotland from 1.4.1996 (except where specified) by virtue of the repeal of s. 83 of this Act by 1995 c. 25, s. 120(3), Sch. 24; S.I. 1996/186, art. 3

Textual Amendments

F2 S. 80A inserted (5.1.1994) by 1993 c. 40, ss. 3(6), 12(1)

Modifications etc. (not altering text)

C6 S. 80A applied (with modifications)(17.12.1996) by 1996 c. ix, ss. 1(1), 24(2)

C7 Ss. 79-81 excluded (S.) (22.4.2006 for certain purposes and otherwise prosp.) by Water Services etc. (Scotland) Act 2005 (asp 3), ss. 26(10), 37(2) (with s. 36); S.S.I. 2006/167, art. 2, Sch. 2

81 Supplementary provisions. E+W

(1) Where more than one person is responsible for a statutory nuisance section 80 above shall apply to each of those persons whether or not what any one of them is responsible for would by itself amount to a nuisance.

(2) Where a statutory nuisance which exists or has occurred within the area of a local authority, or which has affected any part of that area, appears to the local authority to be wholly or partly caused by some act or default committed or taking place outside the area, the local authority may act under section 80 above as if the act or default were wholly within that area, except that any appeal shall be heard by a magistrates’ court having jurisdiction where the act or default is alleged to have taken place.

(3) Where an abatement notice has not been complied with the local authority may, whether or not they take proceedings for an offence under section 80(4) above, abate the nuisance and do whatever may be necessary in execution of the notice.

(4) Any expenses reasonably incurred by a local authority in abating, or preventing the recurrence of, a statutory nuisance under subsection (3) above may be recovered by them from the person by whose act or default the nuisance was caused and, if that person is the owner of the premises, from any person who is for the time being the owner thereof; and the court may apportion the expenses between persons by whose acts or defaults the nuisance is caused in such manner as the court consider fair and reasonable.

(5) If a local authority is of opinion that proceedings for an offence under section 80(4) above would afford an inadequate remedy in the case of any statutory nuisance , they may, subject to subsection (6) below, take proceedings in the High Court for the purpose of securing the abatement, prohibition or restriction of the nuisance, and the proceedings shall be maintainable notwithstanding the local authority have suffered no damage from the nuisance.

(6) In any proceedings under subsection (5) above in respect of a nuisance falling within paragraph (g) of section 79(1) above, it shall be a defence to prove that the noise was authorised by a notice under section 60 or a consent under section 61 (construction sites) of the M8 Control of Pollution Act 1974.

(7) The further supplementary provisions in Schedule 3 to this Act shall have effect.

Marginal Citations

M8 1974 c. 40.

Valid from 05/01/1994

[F3 81A Expenses recoverable from owner to be a charge on premises. E+W

(1) Where any expenses are recoverable under section 81(4) above from a person who is the owner of the premises there mentioned and the local authority serves a notice on him under this section—

(a) the expenses shall carry interest, at such reasonable rate as the local authority may determine, from the date of service of the notice until the whole amount is paid, and

(b) subject to the following provisions of this section, the expenses and accrued interest shall be a charge on the premises.

(2) A notice served under this section shall—

(a) specify the amount of the expenses that the local authority claims is recoverable,

(b) state the effect of subsection (1) above and the rate of interest determined by the local authority under that subsection, and

(c) state the effect of subsections (4) to (6) below.

(3) On the date on which a local authority serves a notice on a person under this section the authority shall also serve a copy of the notice on every other person who, to the knowledge of the authority, has an interest in the premises capable of being affected by the charge.

(4) Subject to any order under subsection (7)(b) or (c) below, the amount of any expenses specified in a notice under this section and the accrued interest shall be a charge on the premises—

(a) as from the end of the period of twenty-one days beginning with the date of service of the notice, or

(b) where an appeal is brought under subsection (6) below, as from the final determination of the appeal,

until the expenses and interest are recovered.

(5) For the purposes of subsection (4) above, the withdrawal of an appeal has the same effect as a final determination of the appeal.

(6) A person served with a notice or copy of a notice under this section may appeal against the notice to the county court within the period of twenty-one days beginning with the date of service.

(7) On such an appeal the court may—

(a) confirm the notice without modification,

(b) order that the notice is to have effect with the substitution of a different amount for the amount originally specified in it, or

(c) order that the notice is to be of no effect.

(8) A local authority shall, for the purpose of enforcing a charge under this section, have all the same powers and remedies under the M9 Law of Property Act 1925, and otherwise, as if it were a mortgagee by deed having powers of sale and lease, of accepting surrenders of leases and of appointing a receiver.

(9) In this section—

• “owner”, in relation to any premises, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the premises or, where the premises are not let at a rack rent, would be so entitled if they were so let, and

• “premises” does not include a vessel.]

Textual Amendments

F3 Ss. 81A, 81B inserted (E.W.) (5.1.1994) by 1993 c. 40, ss. 10(2), 12(1)

Marginal Citations

M9 1925 c. 20.

Valid from 05/01/1994

F4 81B Payment of expenses by instalments. E+W

(1) Where any expenses are a charge on premises under section 81A above, the local authority may by order declare the expenses to be payable with interest by instalments within the specified period, until the whole amount is paid.

(2) In subsection (1) above—

• “interest” means interest at the rate determined by the authority under section 81A (1) above, and

• “the specified period” means such period of thirty years or less from the date of service of the notice under section 81A above as is specified in the order.

(3) Subject to subsection (5) below, the instalments and interest, or any part of them, may be recovered from the owner or occupier for the time being of the premises.

(4) Any sums recovered from an occupier may be deducted by him from the rent of the premises.

(5) An occupier shall not be required to pay at any one time any sum greater than the aggregate of—

(a) the amount that was due from him on account of rent at the date on which he was served with a demand from the local authority together with a notice requiring him not to pay rent to his landlord without deducting the sum demanded, and

(b) the amount that has become due from him on account of rent since that date.

Textual Amendments

F4 Ss. 81A, 81B inserted (E.W.) (5.1.1994) by 1993 c. 40, ss. 10(2), 12(1)

82 Summary proceedings by persons aggrieved by statutory nuisances. E+W

(1) A magistrates’ court may act under this section on a complaint made by any person on the ground that he is aggrieved by the existence of a statutory nuisance.

(2) If the magistrates’ court is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises, the court shall make an order for either or both of the following purposes—

(a) requiring the defendant to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;

(b) prohibiting a recurrence of the nuisance, and requiring the defendant, within a time specified in the order, to execute any works necessary to prevent the recurrence;

and may also impose on the defendant a fine not exceeding level 5 on the standard scale.

(3) If the magistrates’ court is satisfied that the alleged nuisance exists and is such as, in the opinion of the court, to render premises unfit for human habitation, an order under subsection (2) above may prohibit the use of the premises for human habitation until the premises are, to the satisfaction of the court, rendered fit for that purpose.

(4) Proceedings for an order under subsection (2) above shall be brought—

(a) except in a case falling within paragraph (b) or (c) below, against the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, against the owner of the premises;

(c) where the person responsible for the nuisance cannot be found, against the owner or occupier of the premises.

(5) Where more than one person is responsible for a statutory nuisance, subsections (1) to (4) above shall apply to each of those persons whether or not what any one of them is responsible for would by itself amount to a nuisance.

(6) Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of.

(7) The notice of the bringing of proceedings in respect of a statutory nuisance required by subsection (6) above which is applicable is—

(a) in the case of a nuisance falling within paragraph (g) of section 79(1) above, not less than three days’ notice; and

(b) in the case of a nuisance of any other description, not less than twenty-one days’ notice;

but the Secretary of State may, by order, provide that this subsection shall have effect as if such period as is specified in the order were the minimum period of notice applicable to any description of statutory nuisance specified in the order.

(8) A person who, without reasonable excuse, contravenes any requirement or prohibition imposed by an order under subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one-tenth of that level for each day on which the offence continues after the conviction.

(9) Subject to subsection (10) below, in any proceedings for an offence under subsection (8) above in respect of a statutory nuisance it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance.

(10) The defence under subsection (9) above is not available—

(a) in the case of a nuisance falling within paragraph (a), (d), (e), (f) or (g) of section 79(1) above except where the nuisance arises on industrial, trade or business premises;

(b) in the case of a nuisance falling within paragraph (b) of section 79(1) above except where the smoke is emitted from a chimney;

(c) in the case of a nuisance falling within paragraph (c) or (h) of section 79(1) above; and

(d) in the case of a nuisance which is such as to render the premises unfit for human habitation.

(11) If a person is convicted of an offence under subsection (8) above, a magistrates’ court may, after giving the local authority in whose area the nuisance has occurred an opportunity of being heard, direct the authority to do anything which the person convicted was required to do by the order to which the conviction relates.

(12) Where on the hearing of proceedings for an order under subsection (2) above it is proved that the alleged nuisance existed at the date of the making of the complaint, then, whether or not at the date of the hearing it still exists or is likely to recur, the court shall order the defendant (or defendants in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.

(13) If it appears to the magistrates’ court that neither the person responsible for the nuisance nor the owner or occupier of the premises can be found the court may, after giving the local authority in whose area the nuisance has occurred an opportunity of being heard, direct the authority to do anything which the court would have ordered that person to do.

Statutory nuisances: Scotland E+W+S

83 Statutory nuisances: Scotland. E+W+S

(1) Sections 79 to 82 above do not apply to Scotland.

(2) In section 16 of the M10 Public Health (Scotland) Act 1897 (definition of nuisances), after paragraph (5) there shall be inserted the following paragraphs—

“(5A) Any fumes (“fumes” meaning airborne solid matter smaller than dust), gases or vapours emitted, so as to be a nuisance or injurious or dangerous to health, from any premises, or part thereof, used or intended to be used as a dwelling house.

(5B) Any dust caused by any trade, business, manufacture or process, being a nuisance or injurious or dangerous to health.”

Marginal Citations

M10 1897 c. 38.

Termination of existing controls over offensive trades and businesses E+W+S

84 Termination of Public Health Act controls over offensive trades etc. E+W+S

(1) Where a person carries on, in the area or part of the area of any local authority—

(a) in England or Wales, a trade which—

(i) is an offensive trade within the meaning of section 107 of the M11 Public Health Act 1936 in that area or part of that area, and

(ii) constitutes a prescribed process designated for local control for the carrying on of which an authorisation is required under section 6 of this Act; or

(b) in Scotland, a business which—

(i) is mentioned in section 32(1) of the Public Health (Scotland) Act 1897 (or is an offensive business by virtue of that section) in that area or part of that area; and

(ii) constitutes a prescribed process designated for local control for the carrying on of which an authorisation is required under the said section 6,

subsection (2) below shall have effect in relation to that trade or business as from the date on which an authorisation is granted under section 6 of this Act or, if that person has not applied for such an authorisation within the period allowed under section 2(1) above for making applications under that section, as from the end of that period.

(2) Where this subsection applies in relation to the trade or business carried on by any person—

(a) nothing in section 107 of the Public Health Act 1936 or in section 32 of the Public Health (Scotland) Act 1897 shall apply in relation to it, and

(b) no byelaws or further byelaws made under section 108(2) of the said Act of 1936, or under subsection (2) of the said section 32, with respect to a trade or business of that description shall apply in relation to it;

but without prejudice to the continuance of, and imposition of any penalty in, any proceedings under the said section 107 or the said section 32 which were instituted before the date as from which this subsection has effect in relation to the trade or business.

(3) Subsection (2)(b) above shall apply in relation to the trade of fish frying as it applies in relation to an offensive trade.

(4) When the Secretary of State considers it expedient to do so, having regard to the operation of Part I and the preceding provisions of this Part of this Act in relation to offensive trades or businesses, he may by order repeal—

(a) sections 107 and 108 of the M12 Public Health Act 1936; and

(b) section 32 of the M13 Public Health (Scotland) Act 1897;

and different days may be so appointed in relation to trades or businesses which constitute prescribed processes and those which do not.

(5) In this section—

• “prescribed process” has the same meaning as in Part I of this Act; and

• “offensive trade” or “trade” has the same meaning as in section 107 of the Public Health Act 1936.

Marginal Citations

M11 1936 c. 49.

M12 1936 c. 49.

M13 1897 c. 38.

Application to gases of certain Clean Air Act provisions E+W+S

85 Application to gases of certain Clean Air Act provisions. E+W+S

After section 7 of the M14 Clean Air Act 1968 there shall be inserted the following section—

“7A Application to gases of certain provisions as to grit and dust.

(1) The Minister may by regulations—

(a) apply all or any of the provisions of sections 2, 3, 4 and 5 of this Act and of sections 7, 18(2), 19(3), 20(4) and 22(1) of the principal Act (provisions relating to grit and dust or smoke) to prescribed gases as they apply to grit and dust; and

(b) apply all or any of the provisions of section 3 of the principal Act (requirement that new furnaces shall be so far as practicable smokeless) to prescribed gases as they apply to smoke;

subject, in either case, to such exceptions and modifications as the Minister thinks expedient.

(2) Regulations under this section may make different provision for different cases.

(3) No regulations shall be made under this section unless a draft of the regulations has been laid before Parliament and approved by each House of Parliament.

(4) In the application of any provision of the principal Act or this Act to prescribed gases by virtue of regulations under this section, any reference to the rate of emission of any substance shall be construed as a reference to the percentage by volume or by mass of the gas which may be emitted during a period specified in the regulations.

(5) In this section—

• “gas” includes vapour and moisture precipitated from vapour; and

• “prescribed” means prescribed in regulations under this section.”

Marginal Citations

M14 1968 c. 62.