Environmental Protection Act 1990

79 Statutory nuisances and inspections therefor. E+W

(1) [F2 Subject to subsections (1A) to (6A) 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;

[F3 (fa) any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance;]

[F4 (fb) artificial light emitted from premises so as to be prejudicial to health or a nuisance;]

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

[F5 (ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street [F6 or in Scotland, road];]

(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 [F7 or sections 80 and 80A 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.

F8 [(1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state.

(1B) Land is in a “contaminated state” for the purposes of subsection (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that—

(a) harm is being caused or there is a possibility of harm being caused; or

(b) pollution of controlled waters is being, or is likely to be, caused;

and in this subsection “harm”, “pollution of controlled waters” and “substance” have the same meaning as in Part IIA of this Act.]

(2) Subsection (1)(b) [F9 , (fb)] 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 [F10 in Wales],

(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.

[F11 (5A) Subsection (1)(fa) does not apply to insects that are wild animals included in Schedule 5 to the Wildlife and Countryside Act 1981 (animals which are protected), unless they are included in respect of section 9(5) of that Act only.]

[F12 (5B) Subsection (1)(fb) does not apply to artificial light emitted from—

(a) an airport;

(b) harbour premises;

(c) railway premises, not being relevant separate railway premises;

(d) tramway premises;

(e) a bus station and any associated facilities;

(f) a public service vehicle operating centre;

(g) a goods vehicle operating centre;

(h) a lighthouse;

(i) a prison.]

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

[F13 (6A) Subsection (1)(ga) above does not apply to noise made—

(a) by traffic,

(b) by any naval, military or air force of the Crown or by a visiting force (as defined in subsection (2) above), or

(c) by a political demonstration or a demonstration supporting or opposing a cause or campaign.]

(7) In this Part—

• [F14 “airport” has the meaning given by section 95 of the Transport Act 2000;]

• [F15 “appropriate person” means—

  (a)

  in relation to England, the Secretary of State;

  (b)

  in relation to Wales, the National Assembly for Wales;]

• [F16 “associated facilities”, in relation to a bus station, has the meaning given by section 83 of the Transport Act 1985;]

• [F17 “bus station” has the meaning given by section 83 of the Transport Act 1985;]

• “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;

• [F18 “equipment” includes a musical instrument;]

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

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

• [F19 “goods vehicle operating centre”, in relation to vehicles used under an operator's licence, means a place which is specified in the licence as an operating centre for those vehicles, and for the purposes of this definition “operating centre” and “operator's licence” have the same meaning as in the Goods Vehicles (Licensing of Operators) Act 1995;]

• [F20 “harbour premises” means premises which form part of a harbour area and which are occupied wholly or mainly for the purposes of harbour operations, and for the purposes of this definition “harbour area” and “harbour operations” have the same meaning as in Part 3 of the Aviation and Maritime Security Act 1990;]

• “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;

• [F21 “lighthouse” has the same meaning as in Part 8 of the Merchant Shipping Act 1995;]

• “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)

  [F22 in England and Wales] outside Greater London, a district council; F23 . . .

  (bb)

  F24 [in Wales, a county council or county borough council;]

  (c)

  the Council of the Isles of Scilly; [F25 and

  (d)

  in Scotland, a district or islands council or a council constituted under section 2 of the M1 Local Government etc (Scotland) Act 1994;]

• “noise” includes vibration;

• [F26 “person responsible”—

  (a)

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

  (b)

  in relation to a vehicle, includes the person in whose name the vehicle is for the time being registered under [F27 the Vehicle Excise and Registration Act 1994] and any other person who is for the time being the driver of the vehicle;

  (c)

  in relation to machinery or equipment, includes any person who is for the time being the operator of the machinery or equipment;]

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

• “premises” includes land and, subject to subsection (12) [F28 and [F29 , in relation to England and Wales,] section 81A(9)] below, any vessel;

• [F30 “prison” includes a young offender institution;]

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

• [F31 “public service vehicle operating centre”, in relation to public service vehicles used under a PSV operator's licence, means a place which is an operating centre of those vehicles, and for the purposes of this definition “operating centre”, “PSV operator's licence” and “public service vehicle” have the same meaning as in the Public Passenger Vehicles Act 1981;]

• [F32 “railway premises” means any premises which fall within the definition of “light maintenance depot”, “network”, “station” or “track” in section 83 of the Railways Act 1993;]

• [F33 “relevant separate railway premises” has the meaning given by subsection (7A);]

• [F34 “road” has the same meaning as in Part IV of the New Roads and Street Works Act 1991;]

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

• [F35 “street” means a highway and any other road, footway, square or court that is for the time being open to the public;

• [F36 “tramway premises” means any premises which, in relation to a tramway, are the equivalent of the premises which, in relation to a railway, fall within the definition of “light maintenance depot”, “network”, “station” or “track” in section 83 of the Railways Act 1993;]]

and any expressions used in this section and in [F37 the Clean Air Act 1993] have the same meaning in this section as in that Act and [F37 section 3 of the Clean Air Act 1993] shall apply for the interpretation of the expression “dark smoke” and the operation of this Part in relation to it.

[F38 (7A) Railway premises are relevant separate railway premises if—

(a) they are situated within—

(i) premises used as a museum or other place of cultural, scientific or historical interest, or

(ii) premises used for the purposes of a funfair or other entertainment, recreation or amusement, and

(b) they are not associated with any other railway premises.

(7B) For the purposes of subsection (7A)—

(a) a network situated as described in subsection (7A)(a) is associated with other railway premises if it is connected to another network (not being a network situated as described in subsection (7A)(a));

(b) track that is situated as described in subsection (7A)(a) but is not part of a network is associated with other railway premises if it is connected to track that forms part of a network (not being a network situated as described in subsection (7A)(a));

(c) a station or light maintenance depot situated as described in subsection (7A)(a) is associated with other railway premises if it is used in connection with the provision of railway services other than services provided wholly within the premises where it is situated.

In this subsection “light maintenance depot”, “network”, “railway services”, “station” and “track” have the same meaning as in Part 1 of the Railways Act 1993.]

[F39 (7C) In this Part “relevant industrial, trade or business premises” means premises that are industrial, trade or business premises as defined in subsection (7), but excluding—

(a) land used as arable, grazing, meadow or pasture land,

(b) land used as osier land, reed beds or woodland,

(c) land used for market gardens, nursery grounds or orchards,

(d) land forming part of an agricultural unit, not being land falling within any of paragraphs (a) to (c), where the land is of a description prescribed by regulations made by the appropriate person, and

(e) land included in a site of special scientific interest (as defined in section 52(1) of the Wildlife and Countryside Act 1981),

and excluding land covered by, and the waters of, any river or watercourse, that is neither a sewer nor a drain, or any lake or pond.

(7D) For the purposes of subsection (7C)—

• “agricultural” has the same meaning as in section 109 of the Agriculture Act 1947;

• “agricultural unit” means land which is occupied as a unit for agricultural purposes;

• “drain” has the same meaning as in the Water Resources Act 1991;

• “lake or pond” has the same meaning as in section 104 of that Act;

• “sewer” has the same meaning as in that Act.]

(8) Where, by an order under section 2 of the M2 Public Health (Control of Disease) Act 1984, a port health authority has been constituted for any port health district, [F40 or in Scotland where by an order under section 172 of the M3 Public Health (Scotland) Act 1897 a port local authority or a joint port local authority has been constituted for the whole or part of a port,] the port health authority [F41 , port local authority or joint port local authority, as the case may be] 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 [F42 (fb),](g) [F43 or (ga)] 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) [F44 , (e) [F45 , (fb)] or (g)][F46 and, in relation to Scotland, [F44 paragraph (ga)],] of subsection (1) above if proceedings in respect thereof might be instituted under Part I [F47 of the M5 Alkali &c. Works Regulation Act 1906 or section 5 of the M6 Health and Safety at Work etc. Act 1974.][F48 or under regulations under section 2 of the Pollution Prevention and Control Act 1999.]

(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) [F28 and [F49 , in relation to England and Wales,] section 81A(9)] 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.

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

E2 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F2 Words in s. 79(1) substituted (1.4.2000 for E., 14.7.2000 for S. and 15.9.2001 for W.) by virtue of 1995 c. 25, s. 120(1), Sch. 22 para. 89(2) (with ss. 7(6), 115, 117); S.I. 2000/340, art. 2(b) (with art. 3); S.S.I. 2000/180, art. 2(1)(b) (with art. 3); S.I. 2001/3211, art. 2(c) (with saving in art. 3)

F3 S. 79(1)(fa) inserted (E.W.) (16.3.2006 for certain purposes for W., 6.4.2006 for E. and 30.1.2007 otherwise for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 101(2), 108; S.I. 2006/768, art. 3; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 6(a) (as amended by S.I. 2007/120, art. 3(c)(d)); S.I. 2007/120

F4 S. 79(1)(fb) inserted (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(2), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F5 S. 79(1)(ga) inserted (5.1.1994) by 1993 c. 40, ss. 2(2)(b), 12(1)

F6 Words in s. 79(1)(ga) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(a) (with ss. 7(6), 115), 117; S.I. 1996/186, art. 3

F7 Words in s. 79(1) inserted (5.1.1994) by 1993 c. 40, ss. 2(2)(c), 12(1)

F8 S. 79(1A)(1B) inserted (1.4.2000 for E., 14.7.2000 for S. and 15.9.2001 for W.) by 1995 c. 25, s. 120(1), Sch. 22 para. 89(3) (with ss. 7(6), 115, 117); S.I. 2000/340, art. 2(b) (with art. 3); S.S.I. 2000/180, art. 2(1)(b) (with art. 3); S.I. 2001/3211, art. 2(c) (with saving in art. 3)

F9 Words in s. 79(2) inserted (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(3), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F10 Words in s. 79(3)(i) inserted (E.W.) (1.5.2022) by virtue of Environment Act 2021 (c. 30), s. 147(3), Sch. 12 para. 25 (with s. 144, Sch. 12 para. 26); S.I. 2022/48, reg. 4(d)

F11 S. 79(5A) inserted (E.W.) (16.3.2006 for certain purposes for W., 6.4.2006 for E. and 30.1.2007 otherwise for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 101(3), 108; S.I. 2006/768, art. 3; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 6(a) (as amended by S.I. 2007/120, art. 3(c)(d)); S.I. 2007/120

F12 S. 79(5B) inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(4), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F13 S. 79(6A) inserted (5.1.1994) by 1993 c. 40, ss. 2(3), 12(1)

F14 In s. 79(7) definition of "airport" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F15 In s. 79(7) definition of "appropriate person" inserted (E.W.) (16.3.2006 for certain purposes for W., 6.4.2006 for E. and 30.1.2007 otherwise for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), s. 101(4); S.I. 2006/768, art. 3; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 6(a) (as amended by S.I. 2007/120, art. 3(c)(d)); S.I. 2007/120

F16 In s. 79(7) definition of "associated facilities" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F17 In s. 79(7) definition of "bus station" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), s. 102(5); S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7 (as amended by S.I. 2007/120, art. 3(h))

F18 Definition of "equipment" in s. 79(7) inserted (5.1.1994) by 1993 c. 40, ss. 2(4)(a), 12(1)

F19 In s. 79(7) definition of "goods vehicle operating centre" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F20 In s. 79(7) definition of "harbour premises" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F21 In s. 79(7) definition of "lighthouse" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F22 Words "in England and Wales" in para. (b) in the definition of "local authority" in s. 79(7)(b) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(b)(i)(with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 and words "in England" expressed to be inserted (1.4.1996) by 1994 c. 19, s. 22(3), Sch. 9 para. 17(5) (with s. 54(7), Sch. 17 paras. 22, 23(2)); S.I. 1996/396, art. 3, Sch. 1

F23 Word in s. 79(7) in the definition of "local authority" repealed (1.4.1996) by 1995 c. 25, ss. 107, 120(3), Sch. 17 para. 2(b)(i), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F24 S. 79(7): para. (bb) in the definition of "local authority" inserted (1.4.1996) by 1994 c. 19, s. 22(3), Sch. 9 para. 17(5) (with s. 54(7), Sch. 17 paras. 22, 23(2)); S.I. 1996/396, art. 3, Sch. 1

F25 S. 79(7): Words in the definition of "local authority" inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(b)(i)(with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F26 Definition of "person responsible" in s. 79(7) substituted (5.1.1994) by 1993 c. 40, ss. 2(4)(b), 12(1)

F27 Words in s. 79(7) substituted (1.9.1994) by 1994 c. 22, ss.63, 66(1), Sch. 3 para. 27(with s. 57(4))

F28 Words in s. 79(7)(11) inserted (5.1.1994) by 1993 c. 40, ss. 10(1), 12(1)

F29 S. 79(7): Words in the definition of "premises" inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(b)(ii) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F30 In s. 79(7) definition of "prison" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F31 In s. 79(7) definition of "public service vehicle operating centre" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F32 In s. 79(7) definition of "railway premises" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F33 In s. 79(7) definition of "relevant separate railway premises" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F34 S. 79(7): Definition of "road" inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(b)(iii) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F35 Definition of "street" in s. 79(7) inserted (5.1.1994) by 1993 c. 40, ss. 2(4)(c), 12(1)

F36 In s. 79(7) definition of "tramway premises" inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(5), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F37 Words in s. 79(7) substituted (27.8.1993) by 1993 c. 11, s. 67(1), Sch. 4 para. 4

F38 S. 79(7A)(7B) inserted (E.W.) (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(6), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F39 S. 79(7C)(7D) inserted (E.W.) (16.3.2006 for certain purposes for W., 6.4.2006 for E. and 30.1.2007 otherwise for W.) by virtue of Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 101(5), 108; S.I. 2006/768, art. 3; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 6(a) (as amended by S.I. 2007/120, art. 3(c)(d)); S.I. 2007/120

F40 Words in s. 79(8) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(c)(i) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F41 Words in s. 79(8) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(c)(ii) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F42 Words in s. 79(8) inserted (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(7), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F43 Words in s. 79(8) inserted (5.1.1994) by 1993 c. 40, ss. 2(5), 12(1)

F44 Words in s. 79(10) substituted (E.W.) (1.8.2000) and (S.) (28.9.2000) by S.I. 2000/1973, reg. 39, Sch. 10 Pt. 1 para. 7 and S.S.I. 2000/323, reg. 36, Sch. 10 Pt. 1 para. 3(6)

F45 Words in s. 79(10) inserted (6.4.2006 for E. and 30.1.2007 for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 102(8), 108; S.I. 2006/795, art. 2(3), Sch. 2; S.I. 2006/2797, art. 7(a) (as amended by S.I. 2007/120, art. 3(h)); S.I. 2007/120

F46 Words in s. 79(10) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(d) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F47 Words in s. 79(10) repealed (16.12.1996 for E.W. and otherwise prosp.) by 1990 c. 43, ss. 162(2), 164(3), Sch. 16 Pt. I; S.I. 1996/3056, art. 2

F48 Words in s. 79(10) inserted (21.3.2000 for E.W. and 29.9.2000 for S.) by 1999 c. 24, s. 6, Sch. 2 para. 6; S.I. 2000/800, art. 2; S.S.I. 2000/322, art. 2

F49 Words in s. 79(11) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(e) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C11 S. 79 applied (with modifications) (17.12.1996) by 1996 c. ix, ss. 1(1), 24

Marginal Citations

M1 1994 c. 39.

M2 1984 c. 22.

M3 1897 c. 38.

M4 1974 c. 40.

M5 1906 c. 14.

M6 1974 c. 37.

79 Statutory nuisances and inspections therefor. S

(1) [F2 Subject to subsections [F50 (1ZA)] to (6A) 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;

[F51 (ea) any water covering land or land covered with water which is in such a state as to be 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;

[F52 (faa) any insects emanating from premises and being prejudicial to health or a nuisance;]

[F53 (fba) artificial light emitted from—

(i) premises;

(ii) any stationary object,

so as to be prejudicial to health or a nuisance;]

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

[F5 (ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street [F6 or in Scotland, road];]

(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 [F7 or sections 80 and 80A 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.

[F54 (1ZA) The Scottish Ministers may by regulations—

(a) amend this section so as to—

(i) prescribe additional matters which constitute statutory nuisances for the purposes of this Part;

(ii) vary the description of any matter which constitutes a statutory nuisance;

(b) in relation to an amendment under paragraph (a), amend this Act and any other enactment to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Scottish Ministers consider appropriate.

(1ZB) Before making regulations under subsection (1ZA) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (1ZC) below.

(1ZC) Those persons are—

(a) such associations of local authorities; and

(b) such other persons,

as the Scottish Ministers consider appropriate.]

F8 [F55 (1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state.

[F55 (1B) Land is in a “contaminated state” for the purposes of sub section (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that–

(a) significant harm is being caused or there is a significant possibility of such harm being caused; or

(b) significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused;

and in this subsection “harm”, “pollution” in relation to the water environment, “substance” and “the water environment” have the same meanings as in Part IIA of this Act.]]

(2) Subsection (1)(b) [F56 , (fba)] and (g) above do not apply in relation to premises [F57 (or, in respect of paragraph (fba)(ii) above, a stationary object located on 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.

[F58 (5ZA) For the purposes of subsection (1)(ea) above, “land”—

(a) includes structures (other than buildings) in, on or over land;

(b) does not include—

(i) mains or other pipes used for carrying a water supply;

(ii) any part of the public sewerage system;

(iii) any other sewers, drains or other pipes used for carrying sewage;

(iv) the foreshore, that is to say, the land between the high and low water marks of ordinary spring tides;

(v) the seabed.

(5ZB) In subsection (5ZA) above—

• “drain”, “sewage” and “sewer” have the meanings given by section 59 of the Sewerage (Scotland) Act 1968 (c. 47);

• “main” has the meaning given by section 109(1) of the Water (Scotland) Act 1980 (c. 45);

• “pipe” includes a service pipe within the meaning of that section of that Act;

• “public sewerage system” has the meaning given by section 29 of the Water Services etc. (Scotland) Act 2005 (asp 3).]

[F59 (5AA) Subsection (1)(faa) above does not apply to insects that are wild animals included in Schedule 5 to the Wildlife and Countryside Act 1981 (c. 69).

(5AB) For the purposes of subsection (1)(faa) above, “premises” does not include—

(a) a site of special scientific interest (within the meaning of section 3(6) of the Nature Conservation (Scotland) Act 2004 (asp 6));

(b) such other place (or type of place) as may be prescribed in regulations made by the Scottish Ministers.

(5AC) Before making regulations under subsection (5AB)(b) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (5AD) below.

(5AD) Those persons are—

(a) such associations of local authorities; and

(b) such other persons,

as the Scottish Ministers consider appropriate.]

[F60 (5BA) Subsection (1)(fba) above does not apply to artificial light emitted from a lighthouse (within the meaning of Part 8 of the Merchant Shipping Act 1995 (c. 21)).]

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

[F13 (6A) Subsection (1)(ga) above does not apply to noise made—

(a) by traffic,

(b) by any naval, military or air force of the Crown or by a visiting force (as defined in subsection (2) above), or

(c) by a political demonstration or a demonstration supporting or opposing a cause or campaign.]

[F61 (6B) In this section, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

(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;

• [F18 “equipment” includes a musical instrument;]

• “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, F62 . . . —

  (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)

  [F22 in England and Wales] outside Greater London, a district council; F23 . . .

  (bb)

  F24 [in Wales, a county council or county borough council;]

  (c)

  the Council of the Isles of Scilly; [F25 and

  (d)

  in Scotland, a district or islands council or a council constituted under section 2 of the M1 Local Government etc (Scotland) Act 1994;]

• “noise” includes vibration;

• [F26 “person responsible”—

  (a)

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

  (b)

  in relation to a vehicle, includes the person in whose name the vehicle is for the time being registered under [F27 the Vehicle Excise and Registration Act 1994] and any other person who is for the time being the driver of the vehicle;

  (c)

  in relation to machinery or equipment, includes any person who is for the time being the operator of the machinery or equipment;]

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

• “premises” includes land [F63 (subject to subsection (5AB) above)] and, subject to subsection (12) [F28 and [F29 , in relation to England and Wales,] section 81A(9)] below, any vessel;

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

• [F34 “road” has the same meaning as in Part IV of the New Roads and Street Works Act 1991;]

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

• [F35 “street” means a highway and any other road, footway, square or court that is for the time being open to the public;]

and any expressions used in this section and in [F37 the Clean Air Act 1993] have the same meaning in this section as in that Act and [F37 section 3 of the Clean Air Act 1993] 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 M2 Public Health (Control of Disease) Act 1984, a port health authority has been constituted for any port health district, F62 . . . the port health authority F62 . . . 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) [F43 or (ga)] 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) [F44 , (e) or (g)] [F46 and, in relation to Scotland, [F44 paragraph (ga)],] of subsection (1) above if proceedings in respect thereof might be instituted under F64 ... [F48 regulations under section 2 of the Pollution Prevention and Control Act 1999] [F65 or section 18 of the Regulatory Reform (Scotland) Act 2014].

(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) [F28 and [F49 , in relation to England and Wales,] section 81A(9)] 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.

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

E3 This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

F2 Words in s. 79(1) substituted (1.4.2000 for E., 14.7.2000 for S. and 15.9.2001 for W.) by virtue of 1995 c. 25, s. 120(1), Sch. 22 para. 89(2) (with ss. 7(6), 115, 117); S.I. 2000/340, art. 2(b) (with art. 3); S.S.I. 2000/180, art. 2(1)(b) (with art. 3); S.I. 2001/3211, art. 2(c) (with saving in art. 3)

F5 S. 79(1)(ga) inserted (5.1.1994) by 1993 c. 40, ss. 2(2)(b), 12(1)

F6 Words in s. 79(1)(ga) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(a) (with ss. 7(6), 115), 117; S.I. 1996/186, art. 3

F7 Words in s. 79(1) inserted (5.1.1994) by 1993 c. 40, ss. 2(2)(c), 12(1)

F8 S. 79(1A)(1B) inserted (1.4.2000 for E., 14.7.2000 for S. and 15.9.2001 for W.) by 1995 c. 25, s. 120(1), Sch. 22 para. 89(3) (with ss. 7(6), 115, 117); S.I. 2000/340, art. 2(b) (with art. 3); S.S.I. 2000/180, art. 2(1)(b) (with art. 3); S.I. 2001/3211, art. 2(c) (with saving in art. 3)

F13 S. 79(6A) inserted (5.1.1994) by 1993 c. 40, ss. 2(3), 12(1)

F18 Definition of "equipment" in s. 79(7) inserted (5.1.1994) by 1993 c. 40, ss. 2(4)(a), 12(1)

F22 Words "in England and Wales" in para. (b) in the definition of "local authority" in s. 79(7)(b) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(b)(i)(with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 and words "in England" expressed to be inserted (1.4.1996) by 1994 c. 19, s. 22(3), Sch. 9 para. 17(5) (with s. 54(7), Sch. 17 paras. 22, 23(2)); S.I. 1996/396, art. 3, Sch. 1

F23 Word in s. 79(7) in the definition of "local authority" repealed (1.4.1996) by 1995 c. 25, ss. 107, 120(3), Sch. 17 para. 2(b)(i), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F24 S. 79(7): para. (bb) in the definition of "local authority" inserted (1.4.1996) by 1994 c. 19, s. 22(3), Sch. 9 para. 17(5) (with s. 54(7), Sch. 17 paras. 22, 23(2)); S.I. 1996/396, art. 3, Sch. 1

F25 S. 79(7): Words in the definition of "local authority" inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(b)(i)(with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F26 Definition of "person responsible" in s. 79(7) substituted (5.1.1994) by 1993 c. 40, ss. 2(4)(b), 12(1)

F27 Words in s. 79(7) substituted (1.9.1994) by 1994 c. 22, ss.63, 66(1), Sch. 3 para. 27(with s. 57(4))

F28 Words in s. 79(7)(11) inserted (5.1.1994) by 1993 c. 40, ss. 10(1), 12(1)

F29 S. 79(7): Words in the definition of "premises" inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(b)(ii) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F34 S. 79(7): Definition of "road" inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(b)(iii) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F35 Definition of "street" in s. 79(7) inserted (5.1.1994) by 1993 c. 40, ss. 2(4)(c), 12(1)

F37 Words in s. 79(7) substituted (27.8.1993) by 1993 c. 11, s. 67(1), Sch. 4 para. 4

F43 Words in s. 79(8) inserted (5.1.1994) by 1993 c. 40, ss. 2(5), 12(1)

F44 Words in s. 79(10) substituted (E.W.) (1.8.2000) and (S.) (28.9.2000) by S.I. 2000/1973, reg. 39, Sch. 10 Pt. 1 para. 7 and S.S.I. 2000/323, reg. 36, Sch. 10 Pt. 1 para. 3(6)

F46 Words in s. 79(10) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(d) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F48 Words in s. 79(10) inserted (21.3.2000 for E.W. and 29.9.2000 for S.) by 1999 c. 24, s. 6, Sch. 2 para. 6; S.I. 2000/800, art. 2; S.S.I. 2000/322, art. 2

F49 Words in s. 79(11) inserted (1.4.1996) by 1995 c. 25, s. 107, Sch. 17 para. 2(e) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F50 Words in s. 79(1) substituted (S.) (26.1.2009) by Public Health etc. (Scotland) Act 2008 (asp 5) {ss. 112(2)(a)}, 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F51 S. 79(1)(ea) inserted (S.) (26.1.2009) by Public Health etc. (Scotland) Act 2008 (asp 5) {ss. 111(2)}, 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F52 S. 79(1)(faa) inserted after s. 79(1)(fa) (S.) (26.1.2009) by virtue of Public Health etc. (Scotland) Act 2008 (asp 5), ss. 109(2), 128(2)(with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F53 S. 79(1)(fba) inserted after s. 79(1)(fb) (S.) (26.1.2009) by virtue of Public Health etc. (Scotland) Act 2008 (asp 5), ss. 110(2), 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F54 S. 79(1ZA)-(1ZC) inserted after s. 79(1) (S.) (26.1.2009) by Public Health etc. (Scotland) Act 2008 (asp 5) {s. 112(2)(b)}, 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F55 S. 79(1B) substituted (S.) (1.4.2006) by The Contaminated Land (Scotland) Regulations 2005 (S.S.I. 2005/658), regs. 1, 2(12)

F56 Words in s. 79(2) inserted (S.) (26.1.2009) by Public Health etc. (Scotland) Act 2008 (asp 5), ss. 110(3)(a), 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F57 Words in s. 79(2) inserted (S.) (26.1.2009) by Public Health etc. (Scotland) Act 2008 (asp 5), ss. 110(3)(b), 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F58 S. 79(5ZA)-(5ZB) inserted after s. 79(5) (S.) (26.1.2009) by Public Health etc. (Scotland) Act 2008 (asp 5), ss. 111(3), 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F59 S. 79(5AA)-(5AD) inserted (S.) (26.1.2009) by virtue of Public Health etc. (Scotland) Act 2008 (asp 5), ss. 109(3), 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F60 S. 79(5BA) inserted after s. 79(5B) (S.) (26.1.2009) by virtue of Public Health etc. (Scotland) Act 2008 (asp 5), ss. 110(4), 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F61 S. 79(6B) inserted (S.) (30.6.2014) by Regulatory Reform (Scotland) Act 2014 (asp 3), s. 61(2), sch. 3 para. 40(7); S.S.I. 2014/160, art. 2(1)(2), sch.

F62 Words in s. 79(7)(8) repealed (S.) (1.10.2009) by Public Health etc. (Scotland) Act 2008 (asp 5), ss. 126, 128(2), Sch. 3 (with s. 127); S.S.I. 2009/319, art. 2(a), Sch. 1

F63 Words in s. 79(7) inserted (S.) (26.1.2009) by Public Health etc. (Scotland) Act 2008 (asp 5), ss. 109(4), 128(2) (with s. 127); S.S.I. 2009/9, art. 2(a), Sch. 1

F64 Words in s. 79(10) repealed (S.) (30.6.2014) by Regulatory Reform (Scotland) Act 2014 (asp 3), s. 61(2), sch. 3 para. 23(a); S.S.I. 2014/160, art. 2(1)(2), sch.

F65 Words in s. 79(10) inserted (S.) (30.6.2014) by Regulatory Reform (Scotland) Act 2014 (asp 3), s. 61(2), sch. 3 para. 3(5); S.S.I. 2014/160, art. 2(1)(2), sch.

Modifications etc. (not altering text)

C11 S. 79 applied (with modifications) (17.12.1996) by 1996 c. ix, ss. 1(1), 24

C12 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

Marginal Citations

M1 1994 c. 39.

M2 1984 c. 22.

M4 1974 c. 40.